Regina v Arthur Fairwell

[2006] NSWDC 53

CITATION:	Regina v Arthur Fairwell [2006] NSWDC 53
HEARING DATE(S):	10 May 2006 - 29 May 2006
JUDGMENT DATE:	29 May 2006
JUDGMENT OF:	Murrell SC DCJ
DECISION:	Accused found fit to plead
CATCHWORDS:	Fitness Inquiry
LEGISLATION CITED:	S 21A (1) Mental Health (Criminal Procedure) Act 1990
CASES CITED:	R v Presser (1958) VR 45
PARTIES:	Regina Arthur Fairwell (Accused)
FILE NUMBER(S):	04/11/1068
COUNSEL:	Mr M Barr (Crown Prosecutor) Mr G Scragg (Accused)

JUDGMENT

Introduction

1 The accused has a history of treatment for mental illness since 1995, when he was diagnosed as suffering from chronic paranoid schizophrenia. In April 2004, the accused began taking Efexor (venlafaxine), an atypical (new generation serotonin boosting) antidepressant. His dose was increased to 150mg pd and, from 19 May 2004, he was taking 225 (or 300mg?) pd, a high dose. In September 2005, Efexor was replaced by 20mg pd of Avanza, another atypical antidepressant. The accused also takes 20mg pd Zyprexa (olanzapine), a high average dose of this atypical (new generation) antipsychotic medication.

2 On 19 May 2004, the accused allegedly administered stupefying drugs to a woman whom he had met on a telephone chatline and her 13-year-old daughter, and engaged in sexual activity with the 13-year-old girl. On 25 May 2004, police searched the accused's home, arrested and charged him. In May 2005, a jury found him fit to plead to the charges.

3 When the trial was listed to commence on 10 May 2006, Dr Lucire, a psychiatrist, reported that the accused's ability to follow the evidence in a trial and provide ongoing instructions to counsel were seriously impaired because the accused suffers from drug - induced akathisia and related mental difficulties. I directed a further inquiry into the accused's fitness to plead. The accused elected to have the inquiry proceed before a judge alone.

4 There is a preliminary issue of whether, before making the election for inquiry by judge alone, the accused sought and received advice in relation to the election from a barrister or solicitor: s21A (1) Mental Health (Criminal Procedure) Act 1990.

5 As to the substantive question, because the accused was found fit to plead in 2005, the issue is whether I am satisfied on the balance of probabilities that he is now unfit: s15 (b). However, as 12 months have passed since the last fitness hearing, the Crown does not argue its case on the basis of the s15(b) presumption. In any event, an inquiry into unfitness is not to be conducted in an adversarial manner and the onus of proof does not rest on any particular party: s12 (2) and (3).

The Psychiatric Evidence

6 On 10 May and throughout the inquiry the accused constantly masticated and rocked in an apparently involuntary manner. The nature and consistency of the behaviour was such that it would be difficult to feign.

7 Neuroleptic (antipsychotic) medication (such as Zyprexa) can cause akathisia (subjective feelings of restlessness which, if serious, are usually accompanied by objective/observable restlessness). Akathisia can be associated with emotional disturbance (anxiety or dysphoria, i.e. negative mood disturbance) and mental confusion/loss of concentration. New generation antidepressants such as Efexor and Avanza can also cause such symptoms. Only a very severe case of akathisia would render a person incapable of concentrating, but the irritability associated with akathisia can affect the absorption of information, resulting in patches of amnesia. The associated irritability can also exacerbate psychotic symptoms, aggravate underlying delusional thoughts and contribute to aggressive or suicidal behaviour, although violence is not frequently associated with drug-induced akathisia.

8 DSM 1V refers to neuroleptic-induced acute akathisia as follows:

" Diagnostic Features
The essential features of Neuroleptic-Induced Acute Akathisia are subjective complaints of restlessness and at least one of the following observed movements: fidgety movements or swinging of the legs while seated ... The subjective complaints include a sense of inner restlessness, most often in the legs ... and dysphoria and anxiety. The symptoms typically occur within 4 weeks of initiating or increasing the dose of a neuroleptic medication and can occasionally follow the reduction of medication.

Associated Features and Disorders
The subjective distress resulting from akathisia is significant and can lead to non-compliance with neuroleptic treatment. Akathisia may be associated with dysphoria, irritability, aggression or suicide attempts ... the development of akathisia appears to be dose dependent and to be more frequently associated with particular neuroleptic medications ... the intensity may fluctuate over time. The reported prevalence of akathisia in individuals receiving neuroleptic medication has varied widely (20% -- 75%). Although the atypical neuroleptic medications are less likely to cause akathisia than the typical neuroleptics, nonetheless, these medications do cause akathisia in some individuals ..."

9 Some individuals metabolise drugs very slowly. About 7% of the population are slow metabolisers of drugs such as Efexor and Avanza. In slow metabolisers, the drugs accumulate and can cause serious side-effects, often within 24 hours of drug commencement or dose increase. The only objective way to determine whether a person's metabolism is compromised is to undertake blood tests, but a coincidence between drug commencement/dose increase and the onset of known side-effects (particularly common side-effects) is an indication that the drug may well be causing the side-effects.

10 Dr Lucire first examined the accused on 25 April 2006. He was restless and fidgety, but did not engage in chronic mastication (bucco glossal syndrome) or rocking. The accused's in-court behaviour represents a significant deterioration from that exhibited on 25 April. Dr Lucire says that the accused's apparently involuntary movements in court are caused by his medication because he metabolises the drugs very slowly and they build up in his system. Her explanation for the coincidence between the onset of the behaviour and the accused's trial is that, despite the fact that the accused has been taking the drugs for a long time, it may have been after 25 April that the drugs reached a critical toxicity. Alternatively, on 25 April the accused may have been able to conceal his restlessness by talking to her and moving about in a more normal fashion. She accepts the accused's complaints of delirium, poor concentration and impaired memory as genuine and says that they are associated with his drug-induced akathisia. She says that, on 19 May 2004, when the accused was taking Efexor (which she says is significantly more "energising" than Avanza), his drug regime would have caused extreme mental imbalance, resulting in the offending conduct.

11 Dr Allnutt, a psychiatrist, described the accused as "a complex diagnostic challenge".

12 Dr Foster, a psychiatrist who treated the accused intermittently from 1995 to about 2002, noted that the accused presented with paranoid delusions, agitation, obsessive compulsive traits and depression. In 2001 Dr Foster diagnosed "paranoid schizophrenia and intermittent alcohol abuse". On other occasions, he diagnosed chronic paranoid schizophrenia. In April 2002, he reported that the accused was usually quite restless, agitated and somewhat pressured in his speech. In his most recent report (in 2005, part of Exhibit 16), Dr Foster stated:

"It is likely that he continues to suffer from a chronic Paranoid Schizophrenic Disorder and Borderline and antisocial personality traits."

13 In December 2002, the Mental Health Review Tribunal determined that the accused was unlikely to become fit to plead within 12 months because of chronic schizophrenic illness. In January 2003, Dr Samuels referred to a history suggestive of chronic paranoid schizophrenia and features of a mixed personality disorder. In March 2003, Dr Llewellyn diagnosed paranoid schizophrenia. In December 2003, Naroonda Hospital, Victoria, diagnosed a relapse of paranoid schizophrenia. In July 2004, Dr Apler, a Justice Health psychiatrist, said that antisocial personality traits were the accused's principal problem.

14 Since May 2004, the accused has been in custody. Dr MacKay, the clinical director/medical superintendent at the prison, is a psychiatrist with 20 years experience who has been responsible for overseeing the accused's psychiatric care. He last saw the accused in mid April, when the accused seemed to be doing well. Partly because of the ongoing therapeutic relationship, Dr MacKay gave his evidence very carefully. Dr MacKay was responsible for developing a special management plan for the accused, which involves health and corrective services staff. Under the plan, nominated staff have particular responsibilities for the accused. The plan is designed to minimise the accused's opportunities to manipulate staff. Dr MacKay has never before seen the accused display apparently involuntary behaviour such as he is exhibiting in court. To Dr MacKay's knowledge, the accused has never complained to Justice Health of symptoms suggestive of akathisia. In Dr MacKay's opinion, the accused has marked antisocial personality traits, if not a personality disorder. The accused may well have had real psychotic episodes involving paranoid delusions, particularly at times of external stress (e.g. placement in segregation or an imminent court hearing), but at other times the accused has manufactured symptoms. On occasions, Dr MacKay has been asked to see the accused urgently because of staff concern about the accused's behaviour, but when he has confronted the accused, the accused has acknowledged exaggeration. Subjectively, the accused has also complained about symptoms of depression and for that reason receives antidepressant medication.

15 Barabara Wojtkowiak, a psychiatric nurse at the Mental Health Unit, Silverwater Prison, has had intermittent contact with the accused over the past two years and now sees him at least twice a week. The accused is now housed in a protection pod with 5-10 other prisoners. On most working days, Ms Wojtkowiak observes prisoners in that pod for 15 to 20 minutes for the purpose of ascertaining whether they are behaving appropriately or exhibiting behaviour indicative of a mental health problem. She last saw the accused on 13 May, three days after the commencement of this inquiry. Prior to seeing the accused in court on 25 May, she has never observed the accused behaving in a manner suggestive of akathisia, nor, to her knowledge, has another staff member ever reported such behaviour.

16 Dr Wong saw the accused for lengthy periods on 10 April 2002, July 2004, March 2005 and on 2 May 2006, and observed him for long periods during the May 2005 fitness inquiry and the current fitness inquiry. In 2002, he noted that the accused displayed "incessant rocking" during part of the interview. At that time, Dr Wong was unable to determine the aetiology of the accused's symptoms. They were consistent with a number of diagnoses, including schizo-affective disorder, substance-induced psychosis and schizophrenia. He now considers that any schizophrenic psychotic symptoms which may have existed in the past are in remission. He diagnoses the accused as suffering from very severe antisocial personality traits. Dr Wong conceded that, if genuine, the accused's in-court symptoms of buccol glossal syndrome and constant rocking could be due to his medication. He said that the "incessant rocking" which he observed during the 2002 interview differed from that now displayed, and that there were no involuntary movements when he interviewed the accused in 2004, 2005 or 2006, and none during the earlier fitness inquiry. Further, there was no note of such movements in the corrective services health records for the past 12 months. In support of his diagnosis of anti social personality traits, Dr Wong relied on the accused's manipulative behaviour while in custody (making suicide threats in order to escape segregation punishment) and the fact that Justice Health has developed a special management plan to minimise opportunities for staff manipulation.

17 Dr Allnutt had three substantial consultations with the accused in November/December 2005 (totalling about five hours) and a brief consultation on 18 May 2006. In November/December 2005 the accused presented as an articulate, intense, obsessive person who was anxious to provide his account of the offences. At that time, Dr Allnutt considered that the accused might be suffering from obsessive compulsive disorder, a chronic psychotic disorder or a paranoid personality disorder with antisocial personality traits. Dr Allnutt was not concerned about the accused's fitness to plead and the accused did not exhibit any symptoms of akathisia. On 18 May 2006, the accused's presentation was quite different. Dr Allnutt said that, although drug-induced akathisia can present at any time, the likelihood of such a reaction decreased the longer a person was on medication. He considered that the accused's oral movements were not typical of the involuntary movements usually associated with drug-induced akathisia and noted that, while generally uncommunicative on 18 May, the accused interacted when he thought that Dr Allnutt had failed to note something important. In Dr Allnutt's opinion, the accused's mastication and rocking were voluntarily controlled. Dr Allnuttt could not entirely rule out the possibility that the accused was now suffering from a mental illness, but it was his opinion that the accused was either completely fabricating apparently involuntary movements or was deliberately exaggerating underlying movements because of his "anxiety about the proceedings".

The Accused's Current Mental Condition

18 There is substantial evidence that, over the past decade, the accused has suffered from mental illness. According to the documentary evidence, on several occasions the accused has been admitted as a psychiatric inpatient. In 2004, he received treatment for depression from Dr Ong, a general practitioner. On many occasions between 1995 and late 2002, the accused consulted Dr Foster, a psychiatrist. The consensus of psychiatric opinion in the documentary evidence is that the accused suffers from chronic paranoid schizophrenia. In addition, several doctors, notably Dr Foster, a treating psychiatrist, have referred to a personality disorder, depression and/or obsessive compulsive disorder. The accused has not been diagnosed as suffering from drug-induced akathisia, nor do the medical records and reports refer to apparently involuntary movements.

19 Of the psychiatrists who were called to give evidence in the inquiry, Dr Lucire stands alone in her conviction that the accused currently suffers from serious mental side-effects associated with drug-induced akathisia. Doctors Wong and Allnutt each spent significant periods of time with the accused. In the past, each has considered that the accused suffered from a psychosis. Each is of the view that the accused now has no significant mental illness and is feigning his current complaints. Significantly, that is also the view of Dr MacKay, a psychiatrist involved in treating the accused over the past two years.

20 Doctors MacKay, Allnutt and Wong gave carefully considered evidence and made appropriate concessions. I find their views persuasive. Their views are consistent with the views of doctors who have treated the accused in the past. They are consistent with the observations of Ms Wojtkowiak. They are consistent with the evidence that slow metabolisers usually manifest serious side-effects soon after drug commencement/dose increase, as the accused has been on his current medication for some time and was not observed to exhibit apparently involuntary movements prior to this matter. Consequently, I am satisfied that the accused does not currently suffer from serious drug-induced akathisia or associated mental side-effects. He has feigned, or at the very least grossly exaggerated, an apparent need to constantly masticate and rock.

21 It is obvious that Dr Lucire harbours strong sentiments about the efficacy of and risks associated with the drugs currently prescribed for the accused, and disapproves of the conduct of the pharmaceutical companies which promote those drugs. History may prove her right. For the purposes of this inquiry, it does not matter, because the psychiatrists whose evidence as to the accused's current condition I prefer concede that the drugs may be associated with serious side-effects of the type described by Dr Lucire. Rather, based on significant contact with the accused, they consider that the accused himself does not suffer from those side-effects.

22 If the accused has feigned serious drug-induced akathisia, it follows that he has almost certainly manufactured complaints of associated mental restlessness which might interfere with his capacity to concentrate on the proceedings and effectively instruct counsel.

23 I have not overlooked the fact that the accused may suffer from chronic paranoid schizophrenia or some other underlying psychosis which, if not properly controlled by medication, may impact upon his ability to follow the proceedings and maintain a proper relationship with his legal representatives. In the past, he has, at times, expressed paranoid ideas about his legal representatives. However, the evidence from Dr MacKay is that the accused has been doing well recently. The accused is taking antipsychotic medication. There was no psychiatric evidence to the effect that the accused was currently unfit to plead because of a psychosis. Nor was there any psychiatric evidence to the effect that depression or an obsessive compulsive disorder were currently rendering the accused unfit to plead.

Election for Fitness Inquiry by Judge Alone

24 I must first satisfy myself that the accused has sought and received advice from a barrister/solicitor and that the barrister/solicitor was satisfied that the accused properly understood the nature of the election that he was making, ie what was involved in the election : R v Mifsud (CCA, 8 November 1995), R v RTI [2005] NSWCCA 337.

25 There was evidence that the accused is an intelligent person. I do not accept that the accused suffers from serious drug-induced akathisia. Consequently, based on mental health considerations, there is no reason for me to think that the accused's concentration is significantly impaired or that, for some other reason associated with his mental state, he would fail to understand what is involved in an election for inquiry by judge alone. Experienced counsel has explained the nature of an election to proceed before a judge alone. The concept of election to proceed before a judge alone has been explained on several occasions. It has been explained in relation to the fitness inquiry and in relation to any trial.

Fitness to be Tried

26 In R v Presser (1958) VR 45, Smith J. defined the minimum standards which an accused needs to meet before he/she can be tried without unfairness or injustice as follows:

"He 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 on the 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 in needs to be able to do this through his counsel and 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 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."(my emphasis)

27 Dr Lucire said that the accused was an intelligent person. She was satisfied that he understood the nature of the charges and could plead to them. She was satisfied that he could understand generally the nature of the proceedings. She was satisfied that he could understand the substantial effect of the evidence given, although she thought that his severe akathisia would interfere with his ability to concentrate and result in patchy amnesia. She was satisfied that, with the assistance of counsel, the accused could determine his defence and convey his version of the facts to the court, although she believed that the accused's short-term memory was compromised by his condition and his account of the facts would be affected by his abnormal mental state at the time of the relevant conduct.

28 Dr McKay said that the accused could concentrate and follow the proceedings. In his experience, the accused had "a mind like a steel trap". He observed that, within the prison system, the accused had negotiated some complex problems in order to better his situation.

29 Dr Wong was satisfied that the accused met all the Presser criteria.

30 In Dr Allnutt's opinion, the accused can comprehend, communicate and make decisions about legal matters.

31 The opinions of Doctors Allnutt, Wong and MacKay to the effect that the accused meets the Presser criteria, including the requirement that the accused understand the substantial effect of any evidence and be capable of making a defence and instructing counsel, are supported by the following occurrences.

(a) On 8 July 2004, the accused discussed flaws in the prosecution case with Dr Apler.

(b) On 13 July 2004 the accused gave Dr Wong a clear account of his understanding of the criminal justice system.

(c) On 10 September 2004, the accused spoke to prison staff about appealing a decision (Exhibit M).

(d) On 19 October 2004, the accused discussed with prison staff that he was not guilty due to mental illness (Exhibit U).

(e) On 1 December 2004, the accused wrote a long document which, despite containing some bizarre and rambling thoughts, does display an understanding of the allegations and possible lines of defence (Exhibit Q).

(f) On 2 December 2004, the accused represented himself before the Serious Offenders Review Council at a segregation hearing and interacted with the chairman in a coherent, rational and insightful fashion.

(g) In November/December 2005, the accused gave Dr Allnutt relevant background information and an account of the alleged offences.

(h) On 24 February 2006, the accused said that he had pleaded guilty and expected a sentence of 7 to 10 years. He said that the conduct was not his fault, that he had been compelled to behave as he did because of his thoughts and the fact that he was continuously given alcohol (Exhibit V).

(i) On 25 April 2006, the accused saw Dr Lucire, who obtained a history of treatment and thought disorders. The accused explained his offending conduct. Dr Lucire saw no evidence of thought disorder at that time. She noted the accused's complaints that he was restless and unable to sleep but did not note any rocking or mastication.

(j) On 2 May 2006, Dr Wong interviewed the accused for over an hour. The accused was attentive and sustained concentration well throughout the interview. He was not restless or fidgety. He gave a coherent account of his medications and the offending conduct.

32 I accept the evidence of Doctors Wong, Mackay and Allnutt that the accused does not suffer from drug-induced akathisia, at least to any significant extent, and that he meets the Presser criteria. As the accused does not suffer from drug-induced akathisia (at least to any significant extent), it follows that he does not suffer from associated mental problems such as poor concentration and patchy amnesia. Indeed, his concentration is such that he has been able to maintain apparently involuntary movements throughout court sittings over the past fortnight, a task demanding considerable concentration. Consequently, I reject the proposition that the accused's ability to follow the proceedings and instruct counsel is compromised because of deficient concentration. There is evidence that the accused suffers from other mental conditions for which he receives medication, but there is no evidence that his fitness to plead is compromised by those conditions.

33 I find that the accused is fit to be tried for the offences.