R v Williams

1. [1]

   HIS HONOUR: The accused, Wayne Williams, is charged with the murder of his cousin, Dwayne Williams, at Lavington on 13 July 2023. It is alleged that the accused stabbed the deceased in the neck in the early hours of 26 June 2023, when both of them were staying temporarily at a house in Albury. The deceased sustained very severe wounds, of which he died after 18 days in hospital. The date and place of the murder as charged are the date and place of Mr Dwayne Williams' ultimate demise.

2. [2]

   The accused has been in custody since 26 June 2023, now one year and eight months. He was committed to this Court on 22 October 2024 and was first before the Criminal List Judge on 11 December 2024. He was not arraigned at that time because a question as to the accused's fitness to stand trial had been raised by the defence, pursuant to s 42 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The Court determined that an inquiry should be conducted to ascertain whether the accused is fit to be tried. That inquiry has been undertaken today on the basis of documentary evidence jointly tendered by the Crown and the defence.

3. [3]

   The following provisions of the Act govern the inquiry and stipulate the orders that the Court may make (extracted so far as relevant):

4. [4]

   The evidence tendered on the inquiry comprises psychiatric reports of Dr Andrew Ellis, engaged by the defence, dated 5 June 2024 and 17 February 2025; psychiatric reports of Dr Adam Martin, engaged by the Crown, dated 16 September 2024 and 18 February 2025; an affidavit of the accused's former solicitor, Ms Jessica Munro, affirmed 10 February 2025; a selection of Justice Health records and the accused's criminal record, in the form of a Bail Report, and custodial records. Each of the psychiatric experts has also provided brief supplementary information by emails, both sent on 18 February 2025.

Dr Ellis – mental impairment and present unfitness

1. [5]

   The accused is an Indigenous man, now 34 years old. He has been a long-term user of alcohol and numerous illicit drugs, notably methylamphetamine, which he has consumed since the age of 17 years, sometimes using up to 1 gram per day.

2. [6]

   The accused reported to Dr Ellis in June 2024 that from the age of 22 he has heard "voices". He said that the voices have been present every day since he has been in custody. He told Dr Ellis that in custody he was finding it difficult to concentrate and that he "just drifts off". Dr Ellis observed that the accused had difficulty expressing himself and organising his thoughts. His attempts to express himself were disjointed and not coherent. The doctor set out one vivid example of this in his report.

3. [7]

   Dr Ellis ascertained that the accused had not previously been admitted to psychiatric care. Based on the information available to him the doctor thought that the period in which the accused had been experiencing auditory hallucinations may have been shorter than the accused himself described and would more likely have been confined to the preceding six or so years.

4. [8]

   During contact with a Community Corrections psychologist in 2018 the accused experienced auditory hallucinations following methamphetamine use. He reported paranoid ideas at that time. In July 2019 and again in November 2021, when in custody in relation to earlier charges, the accused experienced auditory hallucinations. Those symptoms were also proximate to illicit drug use. Antipsychotic medication was administered to him for a short period while in custody in late 2021, but it was stopped in February 2022.

5. [9]

   In February 2023 the accused was apprehended by police after behaving erratically and violently in Albury. On being taken to the Emergency Department of Albury Hospital he was sedated with antipsychotic medication. Drug induced psychosis was recorded with respect to him at that time, but without any record of a thorough psychiatric specialist's assessment having been made.

6. [10]

   In his report of 5 June 2024 Dr Ellis identified mental health impairments in the accused, in accordance with the definition of that term in s 4 of the Act. He stated the following:

7. [11]

   With respect to the question that I am required to decide under s 36(1) of the Act, Dr Ellis gave this opinion at pages 10 to 11 of his report of 5 June 2024:

8. [12]

   In further explanation of item (d), Dr Ellis recorded this in his report of 5 June 2024:

9. [13]

   Dr Ellis attempted to interview the applicant again on 17 February 2025 for an update and to confirm or otherwise the conclusions that he had reached as at June 2024. The doctor had spoken with the accused by audio visual link to the correctional centre in which he is presently detained. Dr Ellis reported the following:

10. [14]

    Having been unable to gain further information by direct interview, Dr Ellis examined further records of the accused’s conduct in prison. He noted that there had been significant and extensive reporting of the accused engaging in fights in custody. Dr Ellis also noted that prior to 15 November 2024 the Public Defender had requested that the accused be assessed for suitability for antipsychotic treatment. The request was supported by a letter from Dr Ellis himself. On 15 November 2024 the accused was seen by Dr Baker, a nonspecialist medical officer. He found the accused alert, easily engaged and exhibiting ordinary emotional expression. The accused denied to Dr Baker that he was hearing voices currently but reported that he had had such hallucinatory experiences in the past when using substances. Dr Baker did not diagnose him with any mental illness or cognitive impairment and continued him on antidepressant treatment. Dr Baker thought there was “nil requirement for referral to Mental Health Facility” and made no plan for future management beyond recommending a review early in the current year.

11. [15]

    The upshot of Dr Ellis’ review of these further Corrective Services and Justice Health records and of his inability to conduct any further interview with the accused was that Dr Ellis found nothing to dissuade him from the opinion he had expressed in his earlier report regarding the subparagraphs of s 36(1) and his ultimate conclusion of unfitness to be tried.

Dr Martin – mental impairment and present unfitness

1. [16]

   Dr Martin interviewed the accused by audio visual link for one hour and 15 minutes on 22 August 2024. In his report of 16 September 2024 he described his findings from the interview as follows:

2. [17]

   Dr Martin's conclusions with respect to diagnosis of a mental impairment were more tentative and qualified than Dr Ellis’ conclusions, as follows:

3. [18]

   With respect to the subparagraphs of s 36(1) of the Act Dr Martin formed the following opinions (with identifiers inserted in square brackets to indicate correspondence with the relevant part of the section):

4. [19]

   In effect, Dr Martin found that, by reason of a mental health impairment, the accused is not able to do nearly any of the things that would be required of him in order to conduct his defence. The doctor’s overall conclusion was given in these terms:

5. [20]

   Dr Martin provided a supplementary report on 18 February 2025. Having regard to Dr Ellis' experience of attempting to interview the accused a second time, Dr Martin did not attempt to do so. He reviewed some video recordings of the accused's behaviour in June 2023 shortly before and after his arrest on the present charge. Dr Martin reviewed Justice Health records which referred to the accused's distractibility, observed on various occasions, and he reviewed the information concerning his fighting in custody. In this second report the doctor expressed a more firm opinion concerning a mental health impairment, in these terms:

6. [21]

   In this supplementary review, current to the present date, Dr Martin expressed the opinion that it is shown that the applicant is not fit to stand trial. He elaborated that conclusion in paragraph 12 of his report:

Ms Munro – present unfitness

1. [22]

   Ms Munro was the solicitor for the accused from July 2023 to November 2024. During that period she spoke with the accused face-to-face, by telephone and by audio visual link. There were a total of approximately 20 contacts. On some occasions counsel who was then instructed to advise and represent the accused was also present.

2. [23]

   Ms Munro deposed to the following experience of her first face-to-face attendance on the accused, with counsel, and her follow up consultations:

The accused may become fit to be tried within 12 months

1. [24]

   Both of the expert psychiatrists who have been retained specifically for the purposes of informing this inquiry have expressed views on the question of whether the accused will or may become fit to be tried for the offence within the next 12 months. They have expressed their conclusions on that matter for the purpose of assisting me to make a finding under s 47 of the Act.

2. [25]

   Dr Martin said this in his report of 16 September 2024:

3. [26]

   In Dr Martin's email to the Office of the Director of Public Prosecutions on 18 February 2025 he responded to a question as to how long after proper treatment is commenced it would be appropriate to assess the accused for antisocial personality disorder and/or cognitive deficits that may also impact his fitness. Dr Martin's reply was as follows:

4. [27]

   Dr Ellis expressed the following view about the likely position over the next 12 months, in the final paragraph of his report dated 5 June 2024:

5. [28]

   That forecast about possible change over the next 12 months was confirmed and elaborated in Dr Ellis’ report of 17 February 2025 as follows:

6. [29]

   Dr Ellis also responded to the question of how long in treatment under the conditions recommended it might take before a clearer position would emerge. In his email of 18 February 2025 Dr Ellis said this:

Conclusions

1. [30]

   On the basis of this evidence I am satisfied on the balance of probabilities that the accused is, at present, not fit to be tried on the charge of murder by reason of a mental health impairment, namely schizophrenia. Neither party required either of the psychiatric experts to give oral evidence and there has been no challenge to the opinions expressed in their reports

2. [31]

   I am satisfied that the accused is not able to do any of the things listed in paragraph 36(1) of the Act, with the possible exception of "(b) plead to the charge". Even in that respect, he is not able to understand the possibility or suitability of pleading the mental illness defence.

3. [32]

   In forming this view I have considered the matters set out in s 44(5), including whether trial processes could be modified to accommodate such impairment as the accused exhibits, the likely length and complexity of the trial and whether he would be represented. Having factored those considerations into the assessment of the matter I am comfortably satisfied that he is not fit to be tried according to the criteria stipulated in the Act.

4. [33]

   I am also satisfied on the balance of probabilities that the accused may become fit to be tried for the offence during the next 12 months.

Orders

1. [34]

   For the above reasons the following orders will be entered:

   1. (1)

      Pursuant to s 49(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) the accused, Wayne Williams, is referred to the Mental Health Review Tribunal.

   2. (2)

      Pursuant to s 47(2)(d) of the Act the accused is remanded in custody.

   3. (3)

      The reports of Dr Ellis and Dr Martin are to be forwarded to the Mental Health Review Tribunal and to Justice Health.