R v Whittall

HIS HONOUR: The accused, Laine Elizabeth Whittall, is charged with the murder of Kevin James Fawcett at Gosford on 7 July 2014. A trial date has not yet been fixed.

A question has been raised as to the accused's fitness to be tried for the offence. This is an inquiry as to whether or not she is unfit to be tried. The provisions of Pt 2 of the Mental Health (Forensic Provisions) Act 1990 apply.

The question of whether a person is fit to be tried is determined in accordance with the well-known criteria set out in R v Presser [1958] VR 45. Also relevant is the issue raised in the High Court in Kesavarajah v R [1994] HCA 41; 181 CLR 230.

The accused is represented in these proceedings by Mr Todd of counsel. Tendered, without objection, were five reports written by two forensic psychiatrists.

Dr Anthony Samuels, who was engaged on behalf of the accused, provided a report dated 24 April 2015 arising from his consultation with the accused on that date and his review of various documentary material. In this report he said:

Dr Samuels provided a further report dated 28 August 2015 following his interview with the accused that date. Dr Samuels noted that he had been contacted by the accused's solicitor, a very experienced solicitor in these matters employed by Legal Aid New South Wales, who indicated that she considered that the accused may now be fit to plead and asked Dr Samuels to reassess the situation. In this report, Dr Samuels concluded as follows:

The Office of the Director of Public Prosecutions engaged Dr Jeremy O'Dea to report on the issue of the accused's fitness or otherwise and he interviewed the accused on 1 November 2015. The result of his interview and his review of certain documentary material is set out in his report of 15 February 2016. Dr O'Dea said:

Dr Samuels saw the accused again on 18 March 2016, albeit via audiovisual link. He had been provided with a copy of the report of Dr O'Dea of 15 February 2016. In his report dated 29 March 2016, he said:

Dr O'Dea saw the accused again on 25 May 2016. In his report on 27 May 2016, he said:

I was informed by Mr Todd this morning that Dr Samuels had seen the accused this morning and remained of the view he expressed in his last report.

The Crown Prosecutor, in helpful written submissions, has indicated that the anticipated length of this trial would be three to four weeks and the issues anticipated at trial would be whether the accused should be found not guilty on the grounds of mental illness, or whether the partial defence of substantial impairment by abnormality of mind might be made out.

It was submitted by the Crown that the medical evidence unanimously supported a finding that the accused is currently unfit to be tried. Mr Todd, on behalf of the accused, has accepted the correctness of that concession by the Crown.

I am of the view that the concession is both fair and soundly based. Accordingly, I conclude that the accused is currently unfit to be tried.

I make the following orders: