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District Court 4 April 2007

Regina v Michael McKenzie

[2007] NSWDC 351

Sexual offences
CRIMINAL LAW FITNESS FOR TRIAL CONFLICTING PSYCHIATRIC EVIDENCE PRESSER PRINCIPLES

Citation: Regina v Michael McKenzie [2007] NSWDC 351
Court: District Court of New South Wales
Date: 4 April 2007
Judge(s): Cogswell SC DCJ

Background

The accused faced a series of serious sexual offences against a child, alleged to have occurred across two separate periods in 2002 to 2003 and 2004 to 2005. The charges included sexual intercourse with a child under ten, indecent assault, and inciting a child under ten to commit an act of indecency, with maximum penalties of up to 25 years imprisonment.

Before any trial could proceed, a question arose as to whether the accused was fit to be tried. That question triggered a formal inquiry under the Mental Health (Criminal Procedure) Act 1990. In a preliminary judgment dated 6 March 2007, the court had already determined that the accused had sufficient capacity to elect a judge-alone hearing for the fitness inquiry itself.

The fitness inquiry proceeded before Cogswell SC DCJ, with expert psychiatric and psychological evidence called by both the Crown and the defence. The central dispute was whether the accused's intellectual disability rendered him unfit to stand trial under the established legal standards.

  • Whether the accused was fit to be tried on the balance of probabilities, applying the criteria in Regina v Presser [1958] VR 45
  • How conflicting expert evidence should be assessed, particularly where psychiatrists disagreed on the severity of the accused's intellectual disability
  • Whether the accused's demonstrated performance in recorded police interviews could reliably indicate his capacity to participate in a criminal trial

Decision

The court received evidence from three experts. Dr C L Wong, called by the Crown, concluded that the accused was fit for trial. He assessed the accused's intellectual disability as mild rather than moderate, considered that the accused had handled police questioning in a manner analogous to cross-examination, and expressed the view that all of the Presser criteria were satisfied. Dr Wong relied in part on the accused's ability to give a detailed history to various practitioners and to function independently in the community.

The defence called Associate Professor Susan Hayes, a psychologist who administered formal intelligence and adaptive behaviour assessments, and Dr Bruce Westmore, a psychiatrist. Their evidence supported a finding of unfitness. Associate Professor Hayes's psychometric testing established the level of the accused's intellectual disability and identified limitations relevant to trial participation. Their evidence collectively raised substantial doubt about whether the accused could meaningfully follow proceedings, instruct counsel, and withstand cross-examination.

Cogswell SC DCJ preferred the evidence of the defence experts over that of Dr Wong. The court was not persuaded that the accused's performance in the police interview provided a reliable analogue for courtroom cross-examination. On the balance of probabilities, the court found the accused unfit to be tried.

Orders Made

  • The accused was found unfit to be tried on the balance of probabilities
  • The matter was referred to the Mental Health Review Tribunal pursuant to s 14 of the Mental Health (Criminal Procedure) Act 1990
  • Proceedings were adjourned to a date to be fixed
  • Bail was granted on the same conditions previously set by the Supreme Court on 28 November 2005, as amended

Key Takeaways

  • The District Court applied the Presser criteria as the governing framework for assessing fitness for trial, evaluating the accused's capacity to understand the proceedings, follow evidence, instruct counsel, and withstand cross-examination.
  • Where expert witnesses disagree on fitness, the court is required to weigh their evidence against each other; agreement among multiple experts on one side does not automatically determine the outcome, but carries significant weight.
  • A finding that an accused handled police questioning competently does not necessarily demonstrate capacity to participate in a criminal trial, given the differences between an informal interview and adversarial courtroom proceedings.
  • Under s 6 of the Mental Health (Criminal Procedure) Act 1990, fitness is determined on the balance of probabilities, and under s 12(3) the onus rests on neither party.
  • Following a finding of unfitness, the court referred the matter to the Mental Health Review Tribunal under s 14 of the same Act, which then conducts its own assessment of the accused's condition and prospects.

Legislation and Cases Referenced

Legislation
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 6, 12, 14

Cases
- Regina v Presser [1958] VR 45