The Queen v Trent Alan WILLIAMS
[2011] ACTSC 76
•3 May 2011
THE QUEEN V TRENT ALAN WILLIAMS
[2011] ACTSC 76 (3 May 2011)
CRIMINAL LAW – jurisdiction, practice and procedure – accused unfit to plead or becoming incapable during trial – investigation of fitness – psychiatrist changing his opinion – accused found unfit to plead – no issue of principle.
Crimes Act 1900 (ACT), ss 311, 314, 315A, 315C, 316, Div 13.2
Criminal Code 2001 (ACT), ss 308, 311
Court Procedures Rules 2006 (ACT), r 4733, 4735A
Eastman v The Queen (2000) 203 CLR 1
The Queen v Fisher [2011] ACTSC 56
W v The Queen (2001) 115 FCR 41
EX TEMPORE JUDGMENT
No. SCC 292 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 3 May 2011
IN THE SUPREME COURT OF THE )
) No. SCC 292 of 2010
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
TRENT ALAN WILLIAMS
ORDER
Judge: Refshauge J
Date: 3 May 2011
Place: Canberra
THE COURT FINDS THAT:
Trent Alan Williams is unfit to plead to the indictment dated 3 May 2011, and is unlikely to become fit to plead within twelve months.
AND THE COURT ORDERS THAT:
The proceedings be adjourned to 9 May 2011 to consider setting a date for a special hearing.
The accused, Trent Alan Williams, has been committed for trial to this court on charges that on 7 September 2009 he entered certain premises in Canberra as a trespasser intending to steal property in them and of theft of property from those premises, the property being valued at $2600.
At the first directions hearing in this court under r 4733 of the Court Procedures Rules 2006 (ACT) (the Rules), a question arose as to the fitness of Mr Williams to plead, and in order to be able to reach the level of satisfaction required for a finding under s 314(1) of the Crimes Act 1900 (ACT), I ordered a mental health report as to Mr Williams’ fitness to plead.
A report of Dr Graham George dated 21 September 2010 was prepared but was ambiguous about the relevant issue. In it, Dr George opined:
On his current medication, it does appear that he has reasonable clarity so far as his understanding of his circumstances are concerned. Intrusive delusional beliefs did not appear to be impacting on him such that he did not understand the criteria associated with fitness to plead on the day of assessment. However, this may not be the case in another week’s time. Therefore, I have considerable reservations in assessing him as fit to plead on this occasion. I believe the court should weigh up this factor in its consideration of his ongoing ability regarding his fitness to plead
On 11 November 2010 I again considered the matter. On that day I also had a report of Dr John Kasinathan dated 14 October 2010, which diagnosed Mr Williams as having schizophrenia with auditory hallucinations and delusions which, “persisted in the absence of substances.” He also met the criteria for cannabis, alcohol and heroin abuse or dependence. Dr Kasinathan reported that if he “were to continue with his anti-psychotic medication as currently prescribed, his mental state should remain stable and settled,” particularly if he remains abstinent from illicit drugs.
It was clear that there was a real and substantial question as to the fitness of Mr Williams to plead, and under Div 13.2 of the Crimes Act, I ordered that the question be reserved for investigation as to the fitness of Mr Williams to plead and directed that he be examined by a psychiatrist or other health professional for the purpose of a report being prepared on the question of his fitness to plead under s 311 of the Crimes Act and as to whether he is likely to become fit to plead within the next twelve months.
Dr George prepared a further report dated 1 February 2011. In summary, the report found that Mr Williams was unfit to plead and that he would not become fit within twelve months. On 3 March 2011 the parties indicated that there was no agreement to support the findings of that report and that a hearing was required. I referred the matter to the Registrar’s directions list, conducted under r 4735A of the Rules, and the matter was listed for hearing today.
In his reports, Dr George set out the personal history of Mr Williams. I do not need to detail that save as follows.
Mr Williams is a 32-year-old born in Australia. He is an only child. His parents separated when he was six. His father has repartnered several times, but not his mother. He is single, never married, nor been in a de facto relationship and has no children. He was educated to year 11, but left school through lack of motivation. He is, however, literate and numerate. He has been granted a certificate to operate certain heavy machinery and has held employment, though not for some years. His longest period of employment was for twelve months.
Most significantly, Mr Williams was diagnosed with schizophrenia some three years ago, though he did suffer some psychotic episodes in 2000. He was admitted to hospital as a result. His schizophrenia manifests itself in auditory hallucinations, saying he has received them from television or radio. He also believed that the persons who say they are his parents are impostors. He has had a number of admissions to the Canberra Hospital psychiatry unit, and has been under the care of Mental Health ACT for approximately three years. His current medication is a depot injection administered fortnightly. He is also taking a mood stabiliser and anti‑psychotic.
Such a diagnosis is not, of course, the end of the matter, though very relevant. As Gleeson CJ said in Eastman v The Queen (2000) 203 CLR 1 (at 14; [24]):
Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not of itself prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Dean and Dawson JJ pointed out in Kesavarajah v The Queen, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial rather than to suffer such incarceration. (footnotes omitted)
Despite the fact that, at least in this Territory, it is rarely a consequence of finding unfitness to plead that there is indefinite incarceration without trial, these comments are relevant.
Dr George reported that Mr Williams has abused cannabis and at times quite heavily. He also smokes cigarettes heavily. He has also used methamphetamine and cocaine, but not heroin. Dr George, then in each of his reports, addressed each of the criteria set out in s 311 of the Crimes Act:
ability to understand the nature of the charge(a) . Dr George considered that Mr Williams understood what the offences of trespass and burglary were and what was involved in them. He appeared to meet this criterion;
ability to enter a plea and challenge jurors or the jury(b) . Dr George reported that Mr Williams said he could enter a plea and he understood the notion of not guilty through mental illness. Mr Williams told Dr George that he understood what a jury was and that he could challenge a juror if required when it was explained it to him;
ability to understand the proceedings as an inquiry as to whether he has committed the offence(c) . In both reports, Dr George stated that Mr Williams understood this criterion;
ability to follow the course of the proceedings(d) . There was some difference in the assessment Dr George made in the two reports in respect of this criterion. In his earlier report, Dr George reported that Mr Williams did not have problems following proceedings. He could understand what the prosecutor, magistrate and defence lawyers were all saying. In his more recent report, however, Dr George stated that Mr Williams told him that when he was last in court, he really did not know what was happening. He would lose concentration easily and was distracted by what was going on in his head. He did not, therefore, really follow the proceedings. No explanation was given for these differences between the two reports, and it was not apparent from the reports themselves that, for example, there had been an exacerbation of Mr Williams' mental illness. His more recent statements of loss of concentration and the greater intrusiveness of the auditory hallucinations would reasonably suggest that his condition has more recently a greater effect on him. It does appear now - and there was no contradiction to this - that he is not able to meet this criterion for fitness to plead;
ability to understand the substantial effect of the evidence(e) . In both reports, Dr George says he formed the opinion that Mr Williams would meet this criterion.
ability to instruct his lawyers(f) . In his earlier report, Dr George stated that Mr Williams told him that he would be able to instruct his lawyers about the case and the fact of his mental illness and the effect on his judgment. In the most recent report, however, Dr George’s opinion was more guarded, recording that Mr Williams believed that he had trouble communicating about the issues of the case. In only his more recent report did Dr George state that Mr Williams would not become fit to plead within twelve months. In the earlier report he expressed no view. In his more recent report, Dr George stated that he found Mr Williams unfit to plead and that he would not become fit to plead within twelve months.
The investigation
The investigation under s 315A of the Crimes Act was listed for hearing today. When it was called on, however, the parties informed me that neither wished to question Dr George, and I excused him from further attendance. No indictment had been filed. It seems to me that the statutory scheme in Div 13.2 of the Crimes Act permits an investigation to proceed without the filing of an indictment. That was the position in The Queen v Fisher [2011] ACTSC 56. No party took any point about it. The filing of an indictment, however, is an important part of the assumption of jurisdiction of the court (see W v The Queen (2001) 115 FCR 41). Further, as I pointed out in The Queen v Fisher, it is an important part of the assessment to conduct it in the context of the actual charge preferred. Accordingly, I adjourned the proceedings so that an indictment could be prepared. It has been prepared, was filed and contains two counts, one of burglary, an offence under s 311 of the Criminal Code 2002 (ACT) (the Criminal Code), and one of theft, an offence under s 308 of the Criminal Code.
Representatives of the prosecution and of Mr Williams both submitted that on the material before me I should find that Mr Williams is unfit to plead and that he will not become fit within twelve months. I have carefully considered both reports of Dr George and the other material to which I have referred. I have some hesitation in understanding the change of opinion expressed by Dr George and the reason for it. Nevertheless, as noted above, Dr George himself expressed in his first report what he described as “considerable reservations” about his then apparent opinion that Mr Williams was fit to plead.
I am satisfied that Mr Williams is unfit to plead and will not become fit to plead within twelve months. As a consequence, s 315C of the Crimes Act requires me to hold a special hearing conducted under s 316 of the Act. I adjourn the matter to consider setting a date for a special hearing on Monday, 9 May 2011.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 18 May 2011
Counsel for the Crown: Mr T Hickey
Solicitor for the Crown: ACT Director of Public Prosecutions
Counsel for the defendant: Mr K Archer
Solicitor for the defendant: Legal Aid Office (ACT)
Date of hearing: 3 May 2011
Date of judgment: 3 May 2011
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