R v Calvin Glen WALKER

[2008] NSWSC 462

CITATION:	R v Calvin Glen WALKER [2008] NSWSC 462
HEARING DATE(S):	12 May 2008
JUDGMENT DATE :	15 May 2008
JUDGMENT OF:	Harrison J
DECISION:	1. The accused Calvin Glen Walker is unfit to be tried for the offence of the murder of Douglas Nicholas Walker on 2 December 2006. 2. In accordance with s 14 of the Mental Health (Criminal Procedure) Act 1990 I refer the accused to the Medical Health Review Tribunal. 3. The accused is remanded to his former custody pending the determination of the Tribunal under s 16 or until further order.
CATCHWORDS:	CRIMINAL LAW – accused charged with murder – evidence of developmental retardation and psychiatric illness including schizophrenia and psychosis – Mental Health Criminal Procedure Act 1990 – whether accused unfit to stand trial - medical opinion that accused was unfit to stand trial
LEGISLATION CITED:	Mental Health Act 1990 Mental Health (Criminal Procedure) Act 1990
CATEGORY:	Procedural and other rulings
CASES CITED:	Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230 R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251 R v Presser [1958] VR 45 R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
PARTIES:	The Crown Calvin Glen Walker (Accused)
FILE NUMBER(S):	SC 2007/4240
COUNSEL:	P Barnett SC (Crown) C Bruce (Accused)
SOLICITORS:	Director of Public Prosecutions (Crown) Legal Aid Commission of New South Wales (Accused)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

15 May 2008

2007/4240 R v Calvin Glen WALKER

JUDGMENT

1 On 12 May 2008 I conducted an inquiry pursuant to the provisions of the Mental Health (Criminal Procedure) Act 1990 ("the Act") into whether the accused Calvin Glen Walker is unfit to be tried in respect of one charge pending against him, namely, that on 2 December 2006 at Tabulam he did murder Douglas Nicholas Walker. On that day I determined that the accused was unfit to be tried for that offence and made orders consequential upon that determination. I indicated that I would deliver my reasons for that decision today.

The Crown case

2 According to the Crown case the accused was born on 1 January 1986. (Some other material before me suggests that he may have been born on 7 February 1983, although for present purposes nothing of significance would appear to turn on this discrepancy). The facts alleged by the Crown are that as at 2 December 2006 the accused had been in a relationship with Bianca Maree Collins for a number of years. Some time prior to that date, Ms Collins had had a brief relationship with Douglas Nicholas Walker, the deceased. It is alleged that the accused harboured some animosity towards the deceased as a result of that brief relationship.

3 On the morning of Saturday 2 December 2006, a number of the residents of the Tabulam Aboriginal Reserve had gathered at the home of Suzie Laurie. The deceased was at those premises and whilst there consumed a quantity of alcohol over a period of some few hours. At approximately 3.00pm on that day the deceased and Audley Walker left the premises and walked to the home of Ms Collins. The accused was already at the premises. As the deceased approached the premises he left the front veranda and went inside, followed shortly thereafter by Ms Collins. She saw the accused walk out of the kitchen area with the blade of a kitchen knife protruding from the top of his pants.

4 At some point the accused called out to the deceased to come over to where he was standing. The deceased complied with that request and went inside the house. They subsequently went out through a door at the rear of the premises together with Ms Collins. It is alleged that the accused then grabbed the deceased and Ms Collins and pushed them both against the wall of the premises. The deceased then let go of Ms Collins who ran back inside the house whilst the physical altercation between the accused and the deceased continued in her absence. It is alleged that during that continued physical altercation the accused stabbed the deceased once in the back with a knife. The blade of the knife penetrated through the skin of the left mid-back and continued for approximately 7cm through the back muscles, ultimately piercing the lower lobe of the left lung and damaging blood vessels. The deceased subsequently died from these injuries.

The evidence

5 Professor David M Greenberg and Dr Bruce Westmore gave oral evidence before me. Two reports prepared by Professor Greenberg dated 24 October 2007 and 19 January 2008 together became Exhibit A in the proceedings. Two reports by Dr Westmore dated 22 August 2007 and 12 February 2008 became Exhibits 1 and 2. A further report from Associate Professor Wayne G J Reid dated 29 January 2008 became Exhibit 3.

6 Professor Greenberg conducted a psychiatric assessment of the accused on 11 October 2007 at the High Dependency Unit at the Metropolitan Remand and Reception Centre at the Silverwater Complex. He explained the nature and purpose of the psychiatric assessment to the accused. The accused reported to Professor Greenberg that when he was 18 years of age he saw a psychiatrist whilst in custody but could not recall any information about his diagnosis or any treatment that he received. Following his release from custody he never took any further psychiatric medications because he was using illicit substances and lived in an isolated area where he could not get transport to the Mental Health Clinic. The accused claimed that he was hearing voices whilst in the community. These voices told him to harm himself and also that people were out to harm him. He claimed that the voices told him that his girlfriend was cheating on him and that he could not trust her.

7 The accused came from a family with a long history of domestic violence between his parents. He attended school until 1994 when he was suspended. He was subsequently placed at Baryulgil Public School in 1994. He had poor literacy and numeracy levels but responded to individual tutoring. He had extensive involvement with the Department of Education and the Department of Community Services. In 1998 the accused was shot in the chest. His verbal communication skills were poor and he was assessed for the Disability Pension.

8 On 19 December 2001 a psychiatrist Dr O'Dea saw the accused. He was noted to be an 18-year-old Aboriginal man who had primary social, alcohol and drug problems. Dr O'Dea questioned whether or not he had Chronic Organic Brain Syndrome. On 25 December 2001 the accused was noted to be withdrawn in his manner whilst in custody. On 2 January 2002 the accused was noted to have inappropriate facial expression and transient self-harming thoughts. On 3 January 2002 he was placed at the ACMU at Cessnock because of his risk of self-harming behaviour.

9 Dr O'Dea subsequently saw the accused on 14 February 2006. At that time he had strange distressing thoughts and was noted to have a history of cannabis abuse. He also had thoughts of killing people, including his de facto partner, and implied that he was hearing voices regarding this. Dr O'Dea felt that he was guarded and paranoid in his manner and had difficulty expressing his experiences. Dr O'Dea noted that the accused had a history of extensive offensive behaviour, polysubstance abuse and a history of developing psychosis with homicidal thoughts. Dr O'Dea was of the view that the accused suffered from a psychosis, which was either atypical psychosis or developing schizophrenia. Dr O'Dea initiated treatment with Olanzapine antipsychotic medication.

10 On 12 February 2006 Justice Health records note that the accused complained of auditory hallucinations whilst coming off illicit substances. The accused had reported on 7 February 2006 having command hallucinations about killing his de facto wife. On 4 December 2006 the accused was seen by a nurse who recorded that he was using various illicit substances, including heroin, amphetamines and cannabis. He was noted on 5 December 2006 as having been non-compliant with his psychiatric medication since April that year. He is reported to have had paranoid thoughts and again complained of auditory hallucinations that were derogatory and commanding in nature.

11 A psychiatrist Dr Apler saw the accused on 21 December 2006. By 31 December 2006 the accused's mental state had deteriorated. He was unsettled and had damaged the contents of his cell. He was given Olanzapine antipsychotic medication. The accused was reassessed on 5 January 2007 complaining that he was hearing voices. He requested an increase in his antipsychotic medication. On 15 January 2007 he was still hearing voices and was seen by the psychiatric registrar Dr Muller on 17 January 2007. He was malodorous and had delusions about death. The accused was diagnosed with schizophrenia and polysubstance abuse with antisocial personality disorder. He was treated with antipsychotic medication called Risperidol and antidepressant medication called Avanza.

12 On 15 March 2007 the accused was seen by a psychiatrist Dr Lewin who noted that he had chronic psychosis on a subacute phase. On 20 March 2007 his psychotic symptoms were noted as having become more troublesome. On 29 March 2007 Dr Lewin prescribed intramuscular antipsychotic medication called Risperidol Consta and then antidepressant medication called Sinequan. On 26 April 2007 Dr Lewin noted that the accused was not coping. On 13 May 2007 he was observed to be extremely agitated and reported receiving messages from the television. He was then admitted to the Higher Dependency Unit at the MRRC catering for inmates with serious mental illness.

13 The accused had psychological testing for intellectual functioning on 17 April 2007 with a psychologist Mr Rodger. He had a verbal IQ score of 55, a performance IQ score of 72 and a full IQ score of 62, placing him in the mildly mentally retarded range. He had ceased school in the fifth grade and was illiterate. He was noted to be Hepatitis C Positive and had high iron levels.

14 The accused saw a psychiatrist Dr Kavenagh on 21 May 2007. He complained of auditory hallucinations and delusions. Dr Kavenagh continued his antipsychotic and antidepressant medication. On 18 July 2007 the accused was noted to be restless and on 2 August 2007 Dr Lewin noted that he was sedated with a florid psychosis and had auditory hallucinations and delusions.

15 Professor Greenberg expressed the opinion following his first examination of the accused that there were reasonable grounds to believe that he suffered from a developmental disability but that there were no reasonable grounds to believe that he suffered from a mental illness or mental disorder within the meaning of Chapter III of the Mental Health Act 1990. Professor Greenberg was of the opinion that there were reasonable grounds to believe that the accused suffered from a mental illness for which treatment was available in hospital but was not a mentally ill person within the meaning of Chapter III of that Act. Professor Greenberg stated that he assessed the accused with regard to the criteria discussed in R v Presser [1958] VR 45 at 48 and Kesavarajah v The Queen [1994] HCA 41; (1994) 181 CLR 230. He then came to the following conclusions:

"At the time of my psychiatric assessment, I had some concerns about whether he could appreciate the substantial effect of any evidence given against him. He seemed extremely blunted in his thought processes and was having some difficulty with communication with the writer. He had marked negative symptoms, such as poverty of thoughts and blunted facial expressions. He expressed thoughts of self-harming behaviour and appeared to be somewhat fragile in his mood status. In this mental state, I had concerns whether he could decide on what defence he should make. I was of the opinion that he could communicate his version of the facts. He seemed ambivalent about what defence he should make. In summary there[fore], I had concerns about whether Mr Walker could appreciate the substantial effect of the evidence, decide on what defence he should make and communicate effectively with his Counsel, given his current impaired unstable mental state. The writer is therefore of the opinion that based on the balance of probabilities, Mr Walker is currently unfit to plead and stand trial.

The writer is of the opinion that Mr Walker's mental state is currently considered unstable and he is currently receiving psychiatric treatment at the Higher Dependency Unit at the Silverwater Complex. The writer is of the opinion that Mr Walker's mental state is likely to significantly improve over the next several weeks (approximately one month) and then the writer would be in a better position to reassess his fitness to plead and stand trial. At the current time, the writer is of the opinion that Mr Walker has both an intellectual disability and a mental illness. Once his mental illness has been stabilised, the writer would be in a better position to reassess the impact of his developmental disability on his ability to understand the Presser criteria."

16 Professor Greenberg had a further opportunity psychiatrically to assess the accused on 9 January 2008. Following that assessment Professor Greenberg was able to formulate the following opinion:

"I am therefore of the opinion that on the balance of probabilities, Mr Walker is currently fit to plead and stand trial, however this rudimentary fitness would be conditional on him receiving legal advice with simple explanations from his legal counsel.

Mr Walker suffers from a major psychiatric illness. He continues to receive psychiatric treatment for his mental illness at this time although he continues to have auditory hallucinations and some paranoid ideation; these symptoms are relatively contained with psychiatric medication at this time. There is a far lesser possibility that with increased stress of a court case, he may present with a deterioration of his mental state, at which time he would again have to be reviewed by a Forensic Psychiatrist. At this time however, I am of the opinion that he could proceed with his legal matter as stated in the above paragraph".

17 Significantly for present purposes, however, Professor Greenberg confirmed following his examination of the accused on 12 May 2008 that he was on that day unfit to be tried. During his evidence before me, Professor Greenberg described the accused earlier that morning as having been "unresponsive to the Presser criteria". He expressed concerns about the accused’s fitness and he said that he had no understanding of the difference between guilty and not guilty. Professor Greenberg also said that the accused would have difficulty understanding court proceedings or instructing legal counsel. He continued to have auditory symptoms, including hearing the voices of his deceased cousin. Professor Greenberg observed that the stress of court proceedings appears to have been exacerbating the mental symptoms of the accused and that, as at 12 May 2008, he was not fit to be tried. He was of the view that assessment of the accused's mental state in the future is likely to be difficult.

18 Dr Westmore first examined the accused on 14 June 2007. He took a history from the accused, which for all relevant purposes corresponds to the history taken by Professor Greenberg. Dr Westmore formed the following opinion:

"The issue is of his fitness to be tried. While he does appear to have a reasonably good working understanding of the Presser issues and he can give an account of what occurred, I do have some concerns about the fact that he is acutely mentally ill. He does report the presence of auditory perceptual disturbances, he probably has paranoid thoughts and he may also have ideas of reference. He did not appear to be unduly distracted during my examination of him which lasted approximately one hour, but that does not mean he would not be distracted during a trial.

I think Mr Walker will be able to present himself to the best of his ability to the court when he is not so psychotic and I would suggest that this issue be raised with the court by way of a fitness hearing. I just have some concerns about the possible disadvantage he may have at this time because of the acuteness of his mental illness. I think Mr Walker will become fit within the next twelve months provided he complies with medication."

19 Dr Westmore examined the accused again on 9 January 2008. He came to the following conclusions:

"Despite his likely intellectual problems, I do not believe that those problems will in and of themselves result in this man being found unfit to be tried. Mr Walker is still unfit to be tried however, because of his acute and chronic symptoms of mental illness. He is still troubled by auditory perceptual disturbances, ideas of reference and paranoid thoughts.

On mental state examination on this particular occasion, Mr Walker presented in a very similar fashion to how he presented in June 2007, although he appeared to be less anxious. Nevertheless, he responded only in response to questions when I reassessed him in January 2008. He again spoke with a monotonous tone and his affect was flat and his mood state restricted. As noted earlier, he continues to suffer acute symptoms of mental illness and he has paranoid thoughts.

I note he is being treated with two different antipsychotic medications and an antidepressant. He remains mentally ill and unfit to be tried because of his mental illness."

20 Dr Westmore reaffirmed during the course of his evidence before me that the accused was unfit to be tried at that time.

21 Professor Reid is a clinical neuropsychologist. He examined the accused on 22 January 2008. He is summary and assessment included the following opinions:

"Despite his extremely limited intellectual abilities he appears to demonstrate a basic understanding of what he has been charged with. However, given his mental illness and intellectual disability, I am of the opinion that despite being able to understand what he is being charged with he would have difficulties being able to plea[d] to the charge, be able to exercise his right of challenge the jurist [sic], understand the general nature of the proceedings, follow the course of proceedings as to understand what is going on in court in general, be able to understand the substantial affect [sic] of any evidence that may be given against him and be able to make his defence or answer to the charge.

Furthermore, given his extremely low verbal intellectual skills, poor reasoning and memory problems, I am of the opinion he would experience difficulties in being able to decide what defence he should rely on and be able to make his defence and his version of the facts known to the court and his counsel."

22 At the date of his examination Professor Reid observed that the accused had a mental illness and that he reported symptoms consistent with an active psychosis. He was also experiencing auditory hallucinations.

23 In R v Presser (supra) the Court described the following test of unfitness:

"It is whether the accused because of mental defect fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him. He needs. . . 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 proceedings, 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 in a general sense, though he need not, of course, understand the purpose of all of the various court formality. He needs to be able to understand. . . the substantial effect of any evidence that may be given against him; he needs to be able to make his defence or answer the charge. Where he has Counsel he needs to be able to do this through his Counsel 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 need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence but he must . . . 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."

24 There is only one standard for assessing whether an accused person is fit to stand trial and that is the Presser test, which sets out the minimum requirement for an accused to stand trial. The fact that an accused person may have been better able to defend himself or herself had some treatment or medication been available to him or her is not a relevant issue as to fitness to stand trial: R v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284. Having regard to the history taken by the specialists who examined the accused, it is relevant to observe that a person's fitness to be tried should not be limited to unfitness by reason of mental illness or mental disorder to the exclusion of developmental or intellectual disability: R v Mailes [2001] NSWCCA 155; (2001) 53 NSWLR 251.

25 During the whole proceedings before me the accused remained quietly seated in the dock. He made no contribution to what occurred, either in the form of any visible reaction or instruction to his counsel. He did not speak and appeared to me at least to be wholly disconnected from the proceedings. Although I had nothing approaching the significant advantage enjoyed by the three medical specialists who examined him, my limited observation of the accused confirmed, to the extent possible, the opinions that have been expressed about him.

26 In forming my opinion and making my determination on the question of unfitness, I have had regard to the principles in R v Presser. I find that upon the basis of the opinions expressed by Professor Greenberg and Dr Westmore, and in particular the views that they have expressed in evidence before me, following their very recent examinations of the accused, that on the balance of probabilities, the accused is unfit to be tried for the offence with which he stands charged.

27 In those circumstances, I confirm the orders that I made on 12 May 2008 as follows:

1. I find that the accused Calvin Glen Walker is unfit to be tried for the offence of the murder of Douglas Nicholas Walker on 2 December 2006.
2. In accordance with s 14 of the Mental Health (Criminal Procedure) Act 1990 I refer the accused to the Medical Health Review Tribunal.
3. I remand the accused to his former custody pending the determination of the Tribunal under s 16 or until further order.

28 At the conclusion of the proceedings I was asked by the Crown and by counsel for the accused whether or not I would be prepared to recommend that the Mental Health Review Tribunal consult with both Professor Greenberg and Dr Westmore before making any further decision or determination concerning the accused. I was impressed by the fact that both counsel were concerned to ensure if possible that the benefit of the detailed consultations between these specialists and the accused, and of the careful opinions formed by them about him, should be made available to the Tribunal and that further consultation with Professor Greenberg and Dr Westmore be arranged if at all possible. In the circumstances of this case I would strongly recommend that such a course be followed.

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