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District Court 9 June 2016

Michael Augustine Porrier v Regina

[2016] NSWDC 99

Sexual offences
CRIMINAL LAW AGGRAVATED INDECENT ASSAULT HOMOSEXUAL INTERCOURSE MENTAL HEALTH FITNESS TO BE TRIED PRESSER CRITERIA FACTORS

Citation: Michael Augustine Porrier v Regina [2016] NSWDC 99
Court: District Court of New South Wales
Date: 9 June 2016
Judge: Judge AC Scotting

Background

The accused faced two counts of aggravated indecent assault and two counts of homosexual intercourse with a person aged between 10 and 18 years. The charges arose from a single alleged incident on a boat during a fishing trip in late 1990 or early 1991, when the complainant was 14 years old. The complainant first disclosed the alleged offending to his sister around 2004 and reported it to police in 2010. The accused was not charged until 2012 and was committed for trial in November 2013.

Before the accused was arraigned, the question of his fitness to plead was raised. From around 1998, the accused had suffered transient ischaemic attacks (brief episodes where blood flow to the brain is temporarily interrupted) caused by arteriosclerosis, leading to transient global amnesia (a temporary but complete loss of memory) and dissociative states. He was diagnosed with prostate cancer in 2004, which had spread to other parts of his body and was described by his treating specialist as incurable, though relatively stable at the time of the hearing.

The accused applied both for a finding of unfitness to stand trial and, separately, for a permanent stay of the prosecution. Both applications were brought on the basis of his combined physical health and mental condition.

  • Whether the accused met the minimum standards for fitness to stand trial set out in R v Presser [1958] VR 45, assessed on the balance of probabilities under the Mental Health (Forensic Provisions) Act 1990 (NSW)
  • Whether the prosecution should be permanently stayed as an abuse of process, on the grounds that: proceeding would offend common humanity given the accused's terminal illness; a referral to the Mental Health Review Tribunal would be equally prejudicial as a trial; and prejudice caused by delay in prosecuting the matter could not be remedied

Decision

Fitness to stand trial: Judge Scotting found the accused unfit to be tried. The court applied the Presser criteria, which require an accused to understand the charges, follow the proceedings, appreciate the effect of evidence given against them, and give instructions to their legal representatives. Expert evidence from a forensic psychologist (Associate Professor Stephen Woods) and a clinical psychologist (Dr Gary Banks), along with correspondence from treating practitioners, supported the conclusion that the accused's cognitive functioning was sufficiently impaired to prevent him from meeting those minimum standards. The court noted that unfitness can arise from physical conditions, mental health conditions, or a combination of both, and that no formal psychiatric diagnosis is required.

Application for a stay: Judge Scotting refused the permanent stay. The court acknowledged that the power to stay criminal proceedings exists as part of the court's inherent jurisdiction to prevent abuse of process, but it is a discretionary power exercised only in exceptional circumstances. The accused raised three grounds in support of the stay.

On the first two grounds (common humanity and equivalence of MHRT proceedings to a trial), the accused relied on a letter from his treating oncologist advising him to minimise significant stress. Judge Scotting accepted that facing serious criminal charges while battling a terminal illness was personally distressing, but declined to draw the inference that exposure to stress would cause the cancer to recur and lead to premature death, finding that inference lacked an evidentiary foundation. The court was not satisfied that referral to the Mental Health Review Tribunal reached the threshold of offending common humanity, particularly given the cancer was currently in remission.

On the third ground, the accused argued that the prejudice from delay could not be adequately remedied by a warning to the tribunal of fact under section 165B of the Evidence Act 1995 (NSW). The court accepted that the accused had suffered significant prejudice from delay, but was satisfied that an appropriate section 165B warning, given in what was likely to be a judge-alone trial, would be taken into account by the tribunal of fact. The stay application was refused on all grounds.

Orders Made

  • The accused is found not fit to be tried.
  • The accused is referred to the Mental Health Review Tribunal under section 14(a) of the Mental Health (Forensic Provisions) Act 1990 to determine whether he is likely to become fit within 12 months.
  • The matter is adjourned to 8 June 2017 for mention.
  • The application for a permanent stay is refused.

Key Takeaways

  • The District Court confirmed that unfitness to stand trial can arise from physical conditions, mental conditions, or a combination of both, without requiring any formal psychiatric diagnosis, provided the accused's mental processes are sufficiently impaired to prevent them from meeting the Presser minimum standards.
  • Under the Mental Health (Forensic Provisions) Act 1990, a finding of unfitness is not an adversarial determination and no party bears an onus of proof; the court makes the finding on the balance of probabilities.
  • A permanent stay of criminal proceedings on grounds of an accused's illness will be granted only in rare circumstances: it is not enough that an accused is seriously ill or facing terminal illness. The court must be satisfied that proceeding would offend common humanity and that no trial management measures can relieve against unfair consequences.
  • Where delay has caused prejudice to an accused, the existence of a statutory mechanism for warning a tribunal of fact (here, section 165B of the Evidence Act 1995) is a relevant factor weighing against a permanent stay, particularly in a judge-alone trial context.
  • Inferences about the medical consequences of proceeding must be grounded in the evidence before the court; speculative leaps in reasoning, even where sympathetically motivated, will not be accepted as a basis for a stay.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 6, 11(1), 12(2), 12(3), 14(a)
- Evidence Act 1995 (NSW), s 165B

Cases
- R v Dashwood [1943] 1 KB 1
- R v Presser [1958] VR 45
- Ngatayi v The Queen (1980) 147 CLR 1
- Barton v The Queen (1980) 147 CLR 75
- Barton v Attorney-General (1987) 10 NSWLR 215
- Hakim v R (1989) 41 A Crim R 372
- Jago v District Court (NSW) (1989) 168 CLR 23
- Williams v Spautz (1992) 174 CLR 509
- Walton v Gardiner (1993) 177 CLR 378
- Kesavarajah v The Queen (1994) 181 CLR 230
- Eastman v The Queen (2000) 203 CLR 1
- R v Sexton (2000) 77 SASR 405
- Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318