R v Woodham

This is an inquiry under Part 4 of Division 1 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which I will call “the Act”. The inquiry is directed to the question of whether the accused Louis Woodham is fit to be tried. If he is not fit to be tried today, the question is whether he is likely to become fit within the next 12 months. However, as will be seen that secondary question – which has important ramifications for the parties, the community and especially Mr Woodham – is posed in a somewhat peculiar way. It will be necessary to return to that issue. All of the evidence was taken yesterday and the parties made submissions immediately thereafter.

As required by the Act, the proceedings were not conducted in an adversarial manner and neither party undertook any onus of proof: see s 44(3) and (4). In considering the question of Mr Woodham’s fitness to be tried I have considered the possible modifications and simplifications that could be made to the trial process, the complexity of the issues likely to arise and the fact that Mr Woodham enjoys the services of two extremely capable legal practitioners. In what I am about to say, as to my determination of the matter, and in what I have already said, I will include the relevant legal principles as well as the factual findings I have made.

Mr Woodham is charged with the murder of Denise Brameld at Numbaa on 10 June 2021. The facts and circumstances of Ms Brameld’s killing, and a modest overview of the evidence upon which the prosecution expects to rely at Mr Woodham’s trial, is set out in a Prosecution Case Statement which formed part of a joint tender bundle which became Exhibit A. It is unnecessary, and perhaps undesirable, to set out the evidence, facts and circumstances other than to make three observations.

The joint tender bundle included a large body of material detailing Mr Woodham’s mental health history. It is extensive and sad and has often been untreated. Mr Woodham has little insight into it - he does not understand it and is in denial as to its severity and impact. Perhaps most perplexing is that Mr Woodham was released from gaol for an earlier offence of violence just six weeks before Ms Brameld was killed. He was not subject to any treatment plan for his psychiatric condition and cognitive impairment, in spite of the fact that those things had been fully explored before he pleaded guilty and was sentenced to gaol.

The psychiatric history is most conveniently set out in a report of Dr Kerri Eagle. Dr Eagle was retained by the prosecution in 2019-2020 when Mr Woodham faced the District Court sitting in Nowra for a series of serious offences of violence. Mr Woodham’s current solicitors approached Dr Eagle after he was charged with Ms Brameld’s murder and she provided a report dated 21 April 2022 which set out the mental health history to which I have referred.

The prosecution retained Dr Adam Martin. He provided reports dated 3 June 2022 and 6 June 2022.

Yesterday afternoon, Drs Eagle and Martin gave concurrent evidence in the course of the inquiry. On behalf of the Court and the parties I thank each of the doctors for their assistance. There is very little between them in terms of their opinions and the issues before the Court. Based on the history and clinical presentation, each is of the opinion that Mr Woodham suffers from schizophrenia or schizoaffective disorder. This is a chronic condition, the symptoms of which have manifested themselves over a number of years. He had this diagnosis when Dr Eagle met him back in 2019. There is evidence of, and a history of:

That list of symptoms is far from comprehensive.

There is a history suggesting that Mr Woodham has very little insight into his condition and denies his psychiatric illness. By way of example, he has been observed to answer non-existent voices but shortly thereafter to deny hearing such voices.

To add complexity to the matter is the fact that, while there is no neuropsychological report before the Court or relevant testing, there seems little doubt that in addition to his complex and severe schizophrenic illness, Mr Woodham also suffers from a substantial cognitive impairment. Dr Martin gave evidence that he would meet the criteria, or diagnosis, of being cognitively impaired.

The above is a scanty overview of Mr Woodham’s condition and symptoms but it suffices to place the issues currently before the court in an understandable context.

As to the issue of fitness, the experts shared the opinion that Mr Woodham is not currently fit to stand trial. I accept those opinions.

Section 36 of the Act sets out the issues to be addressed and mandates that a person is unfit to be tried if – as the result of, relevantly here, a mental health impairment – he is unable to do one or more of the nine things set out in paragraphs (a) to (i) of s 36(1). The criteria in s 36 reproduce, and perhaps codify, the common law test often referred to as the “Presser test” or the Presser criteria: see R v Presser (1958) VR 45. Based on the opinions of the experts, which receive support in an insightful affidavit of Mr Woodham’s solicitor, Mr Jamieson, it is clear that Mr Woodham is currently unfit to be tried.

Adopting the order and approximate language of the paragraphs of s 36(1), I have reached the following factual conclusions:

Speaking more generally, on the evidence before the Court at this stage, Mr Woodham could not make informed decisions as to the conduct of his defence or the plea that he should enter to the murder charge. The inconsistent statements he has made – to police after his arrest and more recently to Dr Eagle – are also relevant to these issues. Without making any judgments about the conclusions a tribunal of fact might make in the future, there may be issues as to (i) intention, (ii) mental illness and (iii) substantial impairment. There is little to suggest that Mr Woodham has any real understanding of those matters. The evidence suggests the opposite. He will also have to understand the physical and forensic evidence, and the inferences that arise from that evidence, in order to instruct his lawyers whether the fact of the killing and his role in it is admitted or contested.

Dr Martin put it this way:

For those reasons, and for the purpose of s 47 of the Act, I record my finding that Mr Woodham is currently not fit to be tried.

Having reached that conclusion, it is necessary to make a determination – described in the case of R v Risi [2021] NSWSC 769 as a “binary choice” – as to whether:

See s 47(1) of the Act and see also R v Lailna [2021] NSWSC 1205.

It will be seen that sub-para (a) of 47(1) is cast in terms of a possibility (“may”) whereas sub-para (b) is cast in terms of something akin to near certainty (“will”). As to sub-para (b) Beech-Jones J (as his Honour then was) said in Risi at [55] that the finding “should only be made if there is a real certainty as to the accused's lack of fitness during the relevant 12 month period.”

In terms of the Parliament’s choice of the word “will” – I have also noted the construction of recent amendments to the Bail Act 2013 (NSW) (that is the insertion of s 22B) by the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v Van Gestel [2022] NSWCCA 171 and Director of Public Prosecutions (NSW) v Day [2022] NSWCCA 173. The Court (in each case comprised of Gleeson JA, Wright and Cavanagh JJ) considered a provision which required a Judge considering bail after a conviction or guilty plea to determine whether an offender “will be sentenced to imprisonment to be served by full-time detention”. Their Honours held at [44]:

See also their Honours comments in Day at [23].

The Court of Criminal Appeal was dealing with different statutory provisions, with different legal consequences and the context is obviously different to some degree. However, it is a useful analysis of statutory language employing the word “will”. It confirms my assessment that s 47(1)(b) does not require a state of “absolute certainty”. Even so, it is a very high standard of satisfaction whether one applies the language of Beech-Jones CJ at CL (“real certainty”) or the Court of Criminal Appeal (“realistically inevitable”).

It was here that there emerged during the concurrent expert evidence a linguistic or philosophical chasm between the lawyers and the forensic psychiatrists. The learned Prosecutor, Senior Counsel for Mr Woodham and I each made several attempts to entice Drs Eagle and Martin to engage with language of certainty employed by ss 47(1)(b) and 48(1) of the Act. Neither was prepared to bite and, insofar as they did so, neither was prepared to offer an opinion in such terms.

It was clear that both held the opinion that Mr Woodham is most unlikely to be become fit within the next year. That was first because of the chronic nature of his schizophrenic illness (which may or may not improve with antipsychotic medication) and because of his cognitive impairment (which is unlikely ever to improve). Neither expert was tempted to engage with the lawyers’ diction or the test as articulated by the current Chief Judge at Common Law in Risi. To put their views as simply as I can: there are no “real certainties” in psychiatry.

To quote a passage of the examination of Dr Martin by Mr Young SC:

Dr Eagle agreed with that analysis. When asked to engage with the expression “realistic inevitability” she provided the following responses:

To quote McCallum JA (as her Honour then was was) it borders on “lawyerly arrogance” on my part to ignore the clear implication of the evidence of these distinguished and thoughtful expert witnesses. [4] It was abundantly clear that both were firmly of the view that it is extremely improbable that Mr Woodham will become fit to be tried in the next twelve months. But neither would, as a matter of science, rule out the possibility.

Each expert also acknowledged, in their own way, that it was ultimately a matter for the Court to apply the legal standard, while they could provide their expert opinions to inform that decision. While their joint opinion that Mr Woodham will not improve sufficiently in the next twelve months to become fit to be tried was strong and well-reasoned, neither Dr Eagle nor Dr Martin was prepared to rule it out as impossible.

Another issue is that neither doctor has consulted with Mr Woodham for some months. Dr Martin saw him on 19 May 2022 while Dr Eagle, who has assessed him over a number of years, last consulted with Mr Woodham on 31 March 2022.

The evidence demonstrates that Mr Woodham is somewhat, if not significantly, resistant to treatment, due in part to the extended periods he has remained psychotic and untreated. [5] However, there have been occasions where his symptoms have improved with treatment. For example:

Dr Martin’s report included the opinion that Mr Woodham “is more likely than not to remain unfit over twelve months.” Dr Eagle expressed a similar opinion, albeit in somewhat different terms. She said:

Dr Eagle also expressed the view that some of Mr Woodham’s “difficulties in satisfying the criteria for fitness arise more from his basic cognitive function rather than his positive symptoms of psychosis”. Dr Eagle confirmed while Clozapine, the most effective treatment for an illness of Mr Woodham’s severity, may improve those positive symptoms and emotional fluctuation, it would be unlikely to impact upon his underlying cognitive function. [8]

Even so, these opinions – which I accept without reservation – are not expressed in the terms of certainty employed by the legislation which I must apply. As the foregoing analysis demonstrates, there remains a possibility that Mr Woodham will improve with treatment and may become fit to be tried over the next 12 months. Conversely, I am unable to find that he “will not become fit to be tried” during that period. Those conclusions are informed by his recovery in 2018-2020, the absence of evidence as to his current progress and the appropriate circumspection of the experts who gave evidence at this inquiry.

For those reasons I make the following findings and orders: