Michael Augustine Porrier v Regina - [2016] NSWDC 99

District Court

New South Wales

Medium Neutral Citation: Michael Augustine Porrier v Regina [2016] NSWDC 99
Hearing dates: 11 March, 27 May 2016
Date of orders: 09 June 2016
Decision date: 09 June 2016
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
The orders I make are as follows:
(1) I find that the accused is not fit to be tried.
(2) I refer the accused to the Mental Health Review Tribunal pursuant to section 14(a) Mental Health (Forensic Provisions Act) 1990 to determine if he is likely to become fit within 12 months.
(3) The matter is adjourned to 8 June 2017 before me for mention.
(4) The application for a stay is refused.

Catchwords: CRIMINAL LAW – aggravated indecent assault – homosexual intercourse
MENTAL HEALTH – fitness to be tried – Presser criteria – factors – unfitness – present condition of accused – determination on balance of probabilities – onus of proof
PROCEDURAL – application for stay of prosecution – discretionary power – exceptional circumstances – onus – disadvantage or prejudice – administration of justice – erosion of public confidence
Legislation Cited: ss. 6, 11(1), 12(2), 12(3), 14(a) Mental Health (Forensic Provisions) Act 1990
s. 165B Evidence Act 1990
Cases Cited: 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
Williams v Spautz (1992) 174 CLR 509
Walton v Gardiner (1993) 177 CLR 378
Jago v District Court (NSW) (1989) 168 CLR 23
Eastman v The Queen (2000) 203 CLR 1
Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318
R v Sexton (2000) 77 SASR 405
Category: Procedural and other rulings
Parties: Regina (Applicant/ Respondent)
Michael Augustine Porrier (Respondent/ Applicant)
Representation:
Counsel:
Mr GR James AM QC with Mr C Parkin (Applicant)
Mr B Hatfiled (Respondent)
Solicitors:
Murphy’s Lawyers (Applicant)
C Hyland, Solicitor for Public Prosecutions (Respondent)

File Number(s): 2012/00209056

Judgment

Michael Augustine Poirrier (the accused) has been charged with two counts of aggravated indecent and two counts of homosexual intercourse with a person between 10 and 18 years.
The charges arise from one alleged incident on a boat owned by the accused, during the period 13 December 1990 and 1 August 1991. The complainant’s father was an acquaintance of the accused and 14 years if age at that time. It is alleged that the accused took the complainant fishing and that during the course of that fishing trip the accused sexually assaulted the complainant.
The Crown allege that a complaint was first made by the complainant to his sister in or about 2004. The matter was not reported to the police until 2010, when the complainant’s first statement was taken. The complainant’s second statement was taken in 2011, and an identification procedure was also completed at that time. The accused was first spoken to by police on 4 April…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael Augustine Porrier v Regina

Details

AGLC: Michael Augustine Porrier v Regina [2016] NSWDC 99
Case: [2016] NSWDC 99
Decision Date: 09 June 2016

CaseChat Overview and Summary

Michael Augustine Porrier has been charged with aggravated indecent assault involving homosexual intercourse. The case was heard in the Supreme Court of Queensland. The primary legal issues addressed by the court were the fitness of the accused to be tried and whether there were exceptional circumstances warranting a stay of the prosecution.

The court was required to determine whether the accused met the Presser criteria for unfitness to be tried. This involved considering the accused's present mental condition and whether he could follow the proceedings, understand the nature of the charges, and effectively instruct his legal representatives. The onus was on the accused to prove his unfitness on the balance of probabilities. Additionally, the court had to assess whether there were exceptional circumstances that would justify a stay of the prosecution, considering factors such as the potential for prejudice and the administration of justice.

The court found that the accused was not fit to be tried, primarily due to his current mental health condition which impeded his ability to effectively participate in his defence. The decision was based on the balance of probabilities and the evidence presented. The court also noted that a stay of the prosecution was not warranted as there were no exceptional circumstances that would significantly prejudice the administration of justice or erode public confidence. The court referred the accused to the Mental Health Review Tribunal to determine if he is likely to become fit within 12 months and adjourned the matter for mention on 8 June 2017. The application for a stay of the prosecution was refused.

Orders

Orders of the court

The orders I make are as follows:

(1) I find that the accused is not fit to be tried.

(2) I refer the accused to the Mental Health Review Tribunal pursuant to section 14(a) Mental Health (Forensic Provisions Act) 1990 to determine if he is likely to become fit within 12 months.

(3) The matter is adjourned to 8 June 2017 before me for mention.

(4) The application for a stay is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Michael Augustine Porrier v Regina [2016] NSWDC 99
Hearing dates:	11 March, 27 May 2016
Date of orders:	09 June 2016
Decision date:	09 June 2016
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	The orders I make are as follows: (1) I find that the accused is not fit to be tried. (2) I refer the accused to the Mental Health Review Tribunal pursuant to section 14(a) Mental Health (Forensic Provisions Act) 1990 to determine if he is likely to become fit within 12 months. (3) The matter is adjourned to 8 June 2017 before me for mention. (4) The application for a stay is refused.
Catchwords:	CRIMINAL LAW – aggravated indecent assault – homosexual intercourse MENTAL HEALTH – fitness to be tried – Presser criteria – factors – unfitness – present condition of accused – determination on balance of probabilities – onus of proof PROCEDURAL – application for stay of prosecution – discretionary power – exceptional circumstances – onus – disadvantage or prejudice – administration of justice – erosion of public confidence
Legislation Cited:	ss. 6, 11(1), 12(2), 12(3), 14(a) Mental Health (Forensic Provisions) Act 1990 s. 165B Evidence Act 1990
Cases Cited:	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 Williams v Spautz (1992) 174 CLR 509 Walton v Gardiner (1993) 177 CLR 378 Jago v District Court (NSW) (1989) 168 CLR 23 Eastman v The Queen (2000) 203 CLR 1 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 R v Sexton (2000) 77 SASR 405
Category:	Procedural and other rulings
Parties:	Regina (Applicant/ Respondent) Michael Augustine Porrier (Respondent/ Applicant)
Representation:	Counsel: Mr GR James AM QC with Mr C Parkin (Applicant) Mr B Hatfiled (Respondent) Solicitors: Murphy’s Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/00209056