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District Court 3 July 2009

R v Michael MCKENZIE

[2009] NSWDC 267

Sexual offences
CRIMINAL LAW FITNESS TO BE TRIED

Citation: R v Michael McKenzie [2009] NSWDC 267
Court: District Court of New South Wales
Date: 3 July 2009
Judge(s): Cogswell SC DCJ

Background

The accused faced an indictment containing serious charges under the Crimes Act 1900, including multiple counts of sexual intercourse with a child under ten years, committing an act of indecency, and inciting a child under ten to commit an act of indecency. The indictment had not been formally presented for arraignment because a question about his fitness to be tried had been raised before that step could occur, as required under the Mental Health (Forensic Provisions) Act 1990.

This was not the first time the issue had arisen. A contested fitness hearing in 2007 had resulted in a finding of unfitness and an order referring the accused to the Mental Health Review Tribunal. Due to an administrative oversight, that referral was never carried out. More than a year later, updated medical reports prompted both the defence and the Crown to raise the question of fitness again.

The court had previously determined, in a separate judgment, that it was appropriate to re-examine fitness despite non-compliance with the earlier order. Three expert reports were tendered at the inquiry, and the court proceeded to determine fitness on the balance of probabilities.

  • Whether the accused had capacity, at the time he signed the relevant document, to elect for the fitness inquiry to be conducted by a judge sitting alone rather than a jury
  • Whether, on the balance of probabilities, the accused was unfit to be tried, applying the criteria established in The Queen v Presser

Decision

Capacity to elect a judge-alone inquiry: The court addressed a preliminary question of whether the accused had the capacity to make a valid election for the inquiry to be conducted by a judge alone. Two expert reports supported the conclusion that he did have that capacity at the relevant time. Dr Allnutt (report of November 2008) expressed the view that the accused would be able to decide on a judge-alone hearing, and Professor Hayes (report of February 2009) agreed he could make that decision. No contrary evidence was before the court. The court was therefore satisfied on the balance of probabilities that a valid election had been made.

Fitness to be tried: The court turned to the substantive fitness question, applying the criteria from The Queen v Presser, which sets out the minimum standards a person must meet to be fit to stand trial. These include understanding the nature of the proceedings, being able to follow the evidence, and being capable of instructing counsel.

Dr Westmore, a forensic psychiatrist, diagnosed the accused with mental retardation and concluded that his ability to make his defence was compromised, as was his capacity to follow the proceedings. He attributed this to a fundamental and constant problem with comprehension, and considered the condition static and unlikely to improve. Professor Hayes, a clinical psychologist, found the accused to be moderately to mildly intellectually disabled, concluding he could not understand the charges, participate effectively in his defence, comprehend the adversarial nature of the proceedings, or adequately instruct his solicitor.

Dr Allnutt, a third forensic psychiatrist, described fitness as a "marginal issue" and noted some improvement in the accused's understanding of court processes over time. He attributed that improvement to the repetition of court attendances rather than genuine comprehension. He nonetheless expressed concern about the accused's ability to convey his version of events and the risk that he might misunderstand questions in cross-examination without signalling that misunderstanding to the court. Taking the expert evidence as a whole, the court was satisfied on the balance of probabilities that the accused was unfit to be tried.

Orders Made

  • The accused was found unfit to be tried
  • Referred to the Mental Health Review Tribunal under section 14 of the Mental Health (Forensic Provisions) Act 1990
  • Bail continued on existing conditions under the Bail Act 1978
  • Proceedings adjourned generally, pending the Tribunal's determination

Key Takeaways

  • The District Court confirmed that a fitness inquiry can lawfully be re-initiated even where orders following an earlier finding of unfitness were never complied with due to administrative oversight.
  • A preliminary capacity question arises before a fitness inquiry conducted by judge alone: the court must be satisfied on the balance of probabilities that the accused had the capacity to make a valid election for that form of inquiry at the time of signing.
  • Under section 7(1) of the Mental Health (Forensic Provisions) Act 1990, a fitness question must be raised before arraignment so far as practicable, meaning the indictment is held in abeyance until fitness is resolved.
  • Applying the Presser criteria, the court found that intellectual disability causing persistent comprehension difficulties, an inability to adequately instruct counsel, and a risk of undetected misunderstanding in cross-examination collectively supported a finding of unfitness.
  • Where the Tribunal determines the accused will not become fit within 12 months, section 16(4) of the Act triggers notification to the Director of Public Prosecutions, who then determines the next steps in the proceedings.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 7(1), 12, 14, 14A, 16(4)
- Bail Act 1978 (NSW)
- Crimes Act 1900 (NSW)

Cases
- The Queen v Presser [1958] VR 45 (Victorian Supreme Court: established the criteria for fitness to be tried)