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

1. 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.

2. 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.

3. 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 2012. He participated in an ERISP on 30 April 2012 and was issued with a court attendance notice on 4 July 2012. The accused was committed for trial on 4 November 2013.

4. The Crown filed the indictment on 29 November 2013. The question of the accused’s fitness to plead was raised before he was arraigned.

5. From about 1998 the accused began to suffer from transient ischemic attacks (TIAs) caused by arteriosclerosis. As a result the accused has suffered from transient global amnesia (TGA), difficulty with his memory and dissociative states during which his awareness of his surroundings and his behaviour is impaired. In 2004 the accused was diagnosed with prostate cancer. The prostate cancer has metastasised. In the opinion of his treating specialist, Prof Stricker, the prostate cancer is incurable but relatively stable at present, the accused has a “very, very guarded prognosis” and any should minimise any significant stress.

6. It is submitted on behalf of the accused that by reason of his physical health and mental condition in combination that he is unfit to be tried and/or that the prosecution should be stayed.

Relevant Law

Fitness to Plead

7. Whether an accused person is unfit to be tried is determined by judge alone on the balance of probabilities: sections 11(1) and 6 Mental Health (Forensic Provisions) Act 1900.

8. An inquiry into fitness is not an adversarial matter and no party bears any onus of proof: sections 12(2) and 12(3) Mental Health (Forensic Provisions) Act 1900.

Purpose

9. The common law guarantees to an accused person the right a fair trial, one aspect of which is that a trial cannot proceed unless the accused person is fit to plead: Eastman v The Queen (2000) 203 CLR 1 at [64].

10. It is a cardinal principle of the common law that no person can be tried for a crime unless they are in a mental condition to defend themselves: R v Dashwood [1943] 1 KB 1 at 4.

11. Where there is an unresolved question of fitness to be tried, or the question of fitness is not determined properly in accordance with law, there is a fundamental failure in the trial process: Eastman at [62] and Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [115]-[118] per Heydon J.

12. Unfitness can arise by reason of the accused’s mental health or by reason of some physical or intellectual disability, or a combination of both: R v Rivkin (2004) 59 NSWLR 284 at [284]. The condition may be entirely physical, for example, coronary artery disease. There does not need to be any underlying illness or formal diagnosis as long as there is an inpaired or disordered mental process: R v Sexton (2000) 77 SASR 405 at [46] and [54].

Test

13. In determining whether an accused is fit to be tried the Court is to consider whether they meet certain minimum standards articulated in R v Presser [1958] VR 45 at 48. In order to be fit to stand trial an accused is required:

“…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 proceeding, 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 the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to that 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, I think, 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.”

14. The test to determine fitness must be applied in a reasonable and commonsense way: Presser at 48; Ngatayi v The Queen (1980) 147 CLR 1 at 8.

15. In determining the question of fitness the judge must take into account not only the present condition of the accused, but also the likely future condition of the accused having regard to the estimated length of the trial: Kesavarajah v The Queen (1994) 181 CLR 230.

Stay of Prosecution

16. The Court has inherent jurisdiction to stay proceedings that constitute an abuse of process: Walton v Gardiner (1993) 177 CLR 378, 392-3; Jago v District Court (NSW) (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75.

17. The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton at 116; Jago at 31 per Mason CJ, at 75 per Gaudron J.

18. The phrase ‘abuse of process’ encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton at 393. The question the Court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.

19. Fairness or unfairness defies analytical judgment and involves a large degree of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.

20. The categories of factual situations in criminal proceedings which may warrant a consideration of the possibility of abuse of process are not closed: Walton at 393.

21. A permanent stay in criminal proceedings will only be justifiable where there is a fundamental defect going to the root of the trial of such a nature that there are no measures that a trial judge can take in the conduct of the trial to relieve against its unfair consequences: Barton at 111; Jago at 34 per Mason CJ, 49 per Brennan J, and 77-78 per Gaudron J.

22. The power to grant a stay must be exercised in accordance with two fundamental policy considerations:

1. That the public administration of justice requires the Court to protect its functions by preventing abuse of process and

2. That unless the court does so there will be an erosion of public confidence in the Court: Williams v Spautz (1992) 174 CLR 509 at 520.

23. In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.

24. If a trial judge finds that it would offend common humanity to require the accused to stand trial, it is open to the judge to stay the proceedings. However, it will be rare that illness, or the physical or mental condition of the accused, will lead the court to such a conclusion: Hakim v R (1989) 41 A Crim R 372 at 377.

Evidence

25. Tendered before the Court on the applications were the following documents:

1. Report of Associate Professor Stephen Woods (Prof Woods), forensic psychologist dated 22 July 2015;

2. Report of Prof Woods dated 10 March 2016;

3. Report of Dr Gary Banks, clinical psychologist dated 24 September 2015; and

4. Bundle of correspondence from the accused’s treating medical practitioners.

Professor Woods

26. Prof Woods was present at Court on 11 March 2016 and was cross-examined.

27. In his first report, Prof Woods noted that the accused first sought treatment for symptoms of “pain over the cranium” and TGA in about 1998. By 2005, the accused’s treating doctors reported him suffering from “missing bits of memory”, vague headaches, episodes of giddiness and nausea. The accused gave a history to Prof Woods that the symptoms have become more intense, occur more frequently and involve this dissociative type states, during which he has no awareness of his surroundings or no memory of what occurred during the episode. The accused’s treating specialists believed that the episodes of TGA are caused by TIAs in response to arteriosclerosis.

28. The accused gave a history that he was diagnosed with prostate cancer in approximately 2004 and underwent a radical prostatectomy. The accused understood that the cancer has spread to his lymph glands and he was due to have surgery for the removal of a lymph gland in mid-June 2015. The accused reported that his cancer was incurable.

29. On his initial presentation on 4 December 2014, Prof Woods opined that the accused was exhibiting symptoms of significantly impaired areas of cognitive function, in particular memory/recall, ability to formulate words, mild thought disorder, difficulty in forming words and verbal expression in general. He was suffering from elevated levels of psychomotor agitation and generally had a high level of anxiety with a depressed mood. Prof Woods noted that the accused had previously been diagnosed with Episodic Severe Depression and that an antidepressant had been prescribed, but the accused did not tolerate the medication as a result of its side-effects.

30. The accused underwent initial medical examinations including a CT brain scan in 1998. Those investigations failed to detect any cause for the onset or continuation of the symptoms he was experiencing. By 2004 the symptoms had become more intense and persistent. The accused was experiencing recurrent episodes of TGA. In 2005 the accused’s treating neurologist, Dr O’Sullivan, made the diagnosis of TIAs caused by arteriosclerosis, for which there was some objective evidence of ischaemia in an MRI brain scan conducted on 18 October 2005.

31. By 2011 the accused was reporting an increase in the occurrence of the TIAs and he was referred to Associate Prof Gerald Fogarty who confirmed the diagnosis given to him by Dr O’Sullivan.

32. The accused reported to Prof Woods that his symptoms of TGA and episodes of impaired cognitive functioning have been more intense and occur with greater frequency since been charged with the matter before the court and since receiving advice that he had developed secondary cancers.

33. The accused was reviewed again by Prof Woods on 10 January 2015. On that occasion the accused did not exhibit the same extreme level of impaired cognitive function however his mood was still severely depressed. The accused explained to Prof Woods that he had “good days” but always has some level of impaired cognitive function. The accused reported that his dissociative episodes were becoming more frequent.

34. Prof Woods administered a number of neuropsychological tests. The Weschler Adult Intelligence Scale test indicated that the accused’s verbal skills were significantly depressed in relation to his other results. Prof Woods observed during the course of the testing that the accused suffered increasing difficulty in maintaining concentration, retrieval of previously learnt knowledge and the ability to verbally express himself. Prof Woods opined that the tests and his observations confirmed that the accused has specific areas of impaired cognitive functioning, for which there was objective confirmation prior to the accused being aware of the current allegations being made against him. Professor Woods administered The Test of Malingering Memory (TOMM). The TOMM failed to detect any suggestion that the accused was feigning his impaired memory functioning.

35. Prof Woods was of the opinion that when the accused was first seen on 4 December 2014 that he was exhibiting a range of cognitive and emotional symptoms such that he was not fit to participate in or adequately instruct his legal representatives in a criminal trial. On 10 January 2015, when participating in the neuropsychological testing, Prof Woods was of the opinion that he had an impaired cognitive function, although not as severe as previously noted, but he was still not fit to participate in a trial.

36. Prof Woods opined that the accused’s ability to verbally express himself and to understand questions put to him were significantly depressed relative to other areas of cognitive function. He also exhibited signs of mental fatigue and required frequent short rest periods. On the four occasions that the accused had been seen by Prof Woods his level of cognitive function was found to vary from significantly impaired to mildly impaired.

37. In preparing his second report Prof Woods had available to him at the report of Dr Banks together with the results of testing conducted by Dr Banks and the short report from Prof Stricker, the accused’s treating urologist dated 22 January 2016. Prof Woods reviewed the accused again on 17 February 2016.

38. Prof Woods reported the accused to be emotionally despondent, commenting that “it’s only a matter of time before I die”. The accused gave a history that Prof Stricker had advised him to avoid significant stress. The accused reported that he had chronically low energy levels and that he was easily mentally fatigued. The accused said that he found it necessary to have a sleep every day after lunch. The accused reported increasing concerns about the court proceedings and a growing fear that he would be unable to participate in them in any meaningful way. The accused reported that he was unable to separate the stressors in his life, being terminal cancer and the court proceedings, and that he was overwhelmed by both of them.

39. Prof Woods noted that there was considerable common ground between himself and Dr Banks, to the effect that they both opined that in the absence of the stress of the court room the accused was able to satisfy the minimal requirements of the Presser test.

40. Prof Woods noted that Dr Banks had conducted further neuropsychological testing on 4 September 2015. Some of that testing was conducted within 12 months of the initial testing, which gave rise to the potential of “practice effects” that may artificially inflate the results. Prof Woods was of the opinion that the testing conducted by Dr Banks was reflective of a deterioration of the accused’s cognitive function.

41. Prof Woods came to the conclusion that he did not believe the accused was capable of sustained participation in a trial.

42. Prof Woods gave evidence that people with TGA have an impaired memory. A common response is to engage in a process called competitive dissidence. This involves filling in gaps in the memory with something that the person thinks may have occurred or infers did occur based on other information available to them.

43. Prof Woods gave evidence that the accused’s impaired cognitive function was demonstrated by him becoming easily fatigued and having a mild thought disorder characterised by having difficulty in recalling events with certain parts of history. As a result, he tended to digress from the point and become tangential leading to generalised confusion.

44. Prof Woods gave evidence that the accused had deteriorated further since his second report and he did not believe that the accused would be capable of participating in a trial, in the way expected of an accused as at 11 March 2016.

45. Prof Woods gave evidence in cross-examination that in his opinion the accused’s ability to participate in the trial process would be for no more than a morning at a time. He opined that the accused’s ability to participate would further decline as the trial went on day by day. In other words, the continuation of the trial would have a cumulative effect on the accused’s ability to participate in it.

Dr Gary Banks

46. Dr Banks was present in Court on 11 March 2016 and was cross-examined.

47. Dr Banks saw the accused once for a four and a half hour period at which time he conducted an interview and administered psychological testing. Dr Banks was of the opinion that this demonstrated that the accused was capable of concentration for a relatively lengthy period; taking into account the accused’s desire to push on and that the accused reported “good days” and “bad days” and that there may be a degree of variability depending upon how the accused felt on any given day.

48. Dr Banks obtained a history that the accused had retired in about 2004 after his prostate cancer diagnosis and that since that time he occupied himself with playing golf, tennis, walking and managing his self-managed superannuation fund (SMSF).

49. Dr Banks obtained a medical history similar to that obtained by Prof Woods and I will not repeat it. Dr Banks commented that during the course of obtaining this history the accused was observed to visibly struggle to recall the details of these episodes, particularly dates, the names of doctors and the results of the tests administered. Dr Banks observed that the accused closed his eyes and raised a hand to his head whilst trying to recall details. The accused told Dr Banks that he would usually ask his wife help in remembering such things.

46. The accused told Dr Banks that he had more recently experienced mental gaps or blocks in his memory; for example driving his car to a destination and not being able to recall where it was parked. Dr Banks observed that the accused struggled to recall information, particularly names, dates and ages, however given time was often able to retrieve most of the information.

47. Based on the history that he was given Dr Banks did not believe that the accused was evidencing symptoms sufficient to meet the diagnostic criteria for a Major Depressive Episode.

48. Dr Banks administered a number of tests. Of note, his memory testing placed him in the low average range. His delayed recall and recognition abilities were marginally better than his immediate recall. The test indicated that he was trying to provide his best effort and was not suggestive that he was trying to embellish or exaggerate any day-to-day difficulties that he may have. Dr Banks accepted that the accused was not malingering.

49. Dr Banks asked the accused a series of questions directed to eliciting information relevant to the application of the Presser criteria.

50. In his consideration of the accused’s understanding as to the nature of the proceedings and to follow what is going on, Dr Banks reported that the accused did evidence some deficits in cognitive skills, particularly in abstract reasoning, auditory comprehension, associative and categorical thinking and short-term memory. He opined that these factors did not differ significantly for that typically expected of an age-related population. Dr Banks reported that his TGA and mental fatigue in combination with his anxiety was likely to make listening to questions, memory recall and being in unfamiliar environments somewhat challenging for the accused and may hinder some aspects of the proceedings. He considered the accused fit to plead but noted that the court will need to weigh carefully the issue of whether the accused is of sufficient health to be fit to sustain the challenges of a lengthy hearing.

51. Dr Banks opined that the accused was likely to understand the importance of witness statements and understand expert scientific evidence presented in court in a general sense. Dr Banks opined that the accused’s assessing difficulties with auditory comprehension, simultaneous processing and abstract reasoning were likely to hinder his ability to answer questions regarding the evidence particularly in an alien and stressful environment. He reported that with appropriate explanation and time to process information the accused could manage questioning although that would be dependent upon how it was physically and mentally feeling on the day.

52. Dr Banks concluded that the accused was not suffering from an apparent mental illness. He was suffering from symptoms of anxiety related to his cancer and prognosis. Dr Banks opined that the accused presented as a high functioning individual with a diagnosis of TGA. Psychometric testing showed a degree of impairment of short-term memory, and abstract reasoning in verbal concept formation which could be associated with age-related cognitive decline. The objective evidence indicated that the accused has experienced a number of short-term fluctuations in attention, concentration and memory which impacted his orientation to person time and place and those matters were within the diagnostic criteria for TGA.

53. Dr Banks concluded that the accused could satisfy the criteria articulated in Presser. Dr Banks reported “[u]nder the pressured setting of the court environment, [the accused] may struggle with comprehending questions put to him whilst simultaneously processing information and recalling memories”.

54. Dr Banks recommended that the accused should not repeatedly be taken through court proceedings and that he be given time to process information. In particular he should not be asked to recall specific details (e.g. names and dates) unless he has had time to prepare. Dr Banks opined that the Court will be need to be most sensitive to the additional and burden of fatigue during the course of the day’s hearing and the cumulative effect of the fatigue across multiple consecutive hearing days. It was suggested that the accused will need to be afforded multiple short breaks during the proceedings.

55. Dr Banks gave evidence that the evidence of Prof Woods did not change his opinion that the accused was fit to stand trial.

56. Dr Banks gave evidence that the accused was not capable of sitting through the trial process for more than half a day at a time. He accepted that a jury trial would add additional pressures to the accused’s ability to follow the proceedings. Dr Banks gave evidence that the Court would have to offer a sensitive approach to timing and scheduling, including expediting the trial to assist the accused.

57. In cross-examination, Dr Banks expressed the opinion that the accused was not remotely impaired in his capacity to provide instructions. When asked what he meant by that, he qualified that answer as being a relative to the vagaries of human memory across the average population for any person to recall what happened 25 years ago. Dr Banks was then asked what he understood the accused’s defence to be. Dr Banks quoted from his notes as follows:

his understanding of the charges, it was a sexual assault on a 15 year old boy, six charges, and also involving a younger boy aged 10 to 12 years. The boy was on the boat that I owned, with his brother or someone else, I can’t remember, they were fishing. For the brother there was a committal hearing but he said that it is alleged that he had committed something but he said he didn’t see me, the brother, didn’t see me or the boy naked but they still proceeded with that. He went further into detail about taking the children to the boat and he went to a funeral, upon – it didn’t return from the funeral until approximately 4.30 and he said that’s when the sexual assault is alleged and that’s when he is putting forward a discrepancy of his place and those time periods and talked about sexual assault in greater detail, that it is alleged that he showered with him, that there was indecent touch. There was also a further allegation about being threatened – that he threatened with a gun the boys and that was coming from the boy but that was not pressed, he was not charged with that.

62. Dr Banks accepted that his notes could have depicted the accused’s understanding of the allegations as they were put at the committal. Dr Banks further accepted that that part of the information that he was provided with seemed to be a recollection by the accused of a day that involved a funeral. Dr Banks did not make any enquiries to ascertain whether the funeral was relevant to the Crown’s allegations. Dr Banks accepted that it was possible the accused was confounding two entirely separate events. On the assumption that the funeral occurred on 22 January 1992, being a date outside the period in which the offences are alleged to have occurred, Dr Banks accepted as a possibility that the introduction by the accused of the funeral was an example of competitive dissidence as described by Prof Woods. Dr Banks gave evidence that he took what the accused had told him at face value in assessing whether he had a capacity to put forward a defence and he was not assessing whether that defence was good, bad or otherwise. Dr Banks accepted that the accused had difficulties with his memory based on his age, his neurological diagnosis, the stress related to his cancer and the stress of these proceedings.

63. Dr Banks accepted that the accused would struggle in giving evidence in chief and being cross-examined. Dr Banks suggested that accommodation needed to be made by counsel and the Court to ask simple questions.

64. Dr Banks gave evidence that he agreed with Prof Woods about the extent of the accused’s mental fatigue. He believed that the trial should be conducted in the morning only, for about two hours with a break in the middle. Dr Banks gave evidence that the accused would need to be monitored on a day-to-day basis as to the cumulative effect of the trial continuing.

Consideration

Fitness to be tried

65. The purpose of the evidence of Prof Woods and Dr Banks is to provide the Court with evidence as to the accused’s cognitive functioning. It is for the Court to decide how to apply and weigh that evidence in determining if the accused is fit to be tried by reference to the Presser criteria.

66. The psychologists agree that the accused suffers from impaired cognitive functioning. The dispute between them relates to the extent of that impairment, based on the psychometric testing and the cause of that impairment. Dr Banks was of the opinion that the impairment could be attributed to the ageing process and the stress attributable to his cancer and these proceedings, without reference to him suffering from TGA, although he accepts that the accused meets the diagnostic criteria for TGA.

67. I prefer the evidence of Prof Woods for the following reasons.

68. First, Prof Woods administered the Weschler Adult Intelligence Scale test (WAIS) on 10 January 2015 in which the accused’s verbal comprehension index (VCI) was significantly depressed relative to other results. Dr Banks readministered the WAIS within 12 months, making the results susceptible to being less reliable by reason of the “practice effect”. Dr Banks did not refer to the results of the testing administered by Prof Woods or seek to explain any difference in the results, except to accept that the accused’s condition could be variable. Further, putting the concept of “practice effects” to one side, Prof Woods opined that the results of the tests administered by Dr Banks reflected a deterioration in the accused’s cognitive functioning. This opinion of Prof Woods was not disputed by Dr Banks when he gave his evidence.

69. Second, Prof Woods has seen the accused on five occasions whereas Dr Banks has only seen him once. Prof Woods has carefully considered the objective evidence contained in the medical reports and has also had the opportunity to speak to the accused’s wife and has considered her observations of him. Those materials justify the conclusion that the accused’s cognitive function is in decline and that the progress of that decline has been more rapid since the diagnosis of prostate cancer and further since the accused was charged.

70. Third, Dr Banks agrees with Prof Woods in a number of crucial respects namely that:

1. Dr Banks observed the accused to struggle with recall the details of his medical investigations;

2. Dr Banks opined that the accused’s day-to-day functioning varied;

3.  The accused suffers from TGA. In his evidence Dr Banks opined that the accused’s mental condition could be explained by the ageing process and the stress related to his cancer and these proceedings, without reference to TGA. In my view that evidence did not give any or any adequate weight to the TGA diagnosis that was accepted by a number of the accused’s treating doctors. The reports from those treating doctors was important and objective evidence of the decline in the accused’s cognitive function at a time before he was diagnosed with cancer and prior to being charged with the matters now before the Court. Dr Banks’ ultimate acceptance of the diagnosis did not adequately reflect that the accused was already experiencing symptoms of cognitive decline prior to the introductions of the stressors that Dr Banks focused on.

4. The accused will be a poor witness as a result of his cognitive impairment.

71. In my view the accused’s memory is significantly impaired by reason of his diagnosis of TGA. In cross-examination Dr Banks accepted that there is a risk of competitive dissidence in the accused’s memory. In other words, the accused may be filling in the gaps in his memory caused by TGA with what he thought may have occurred or by inferring what occurred by reference to other established events. Dr Banks’ notes of the accused’s understanding of the allegations and how he answered them are indicative of this.

72. Further, I am satisfied that the stressors of the accused’s diagnosis with prostate cancer and being charged with these matters has led to an acceleration of the accused’s mental decline. There may also be some element of age-related decline in his cognitive functioning.

73. As a result I am not satisfied that the accused is able to give the necessary instructions to his counsel by providing a reliable version of the facts that is provided from his memory. It follows that he would not be able to give reliable evidence as to his version of the facts.

74. The psychologists agree that the accused will have great difficulty in participating in a trial without modification to the ordinary sitting times and without consideration of his condition by counsel when giving his evidence.

75. The psychologists agree that the accused could only follow the proceedings for a morning session for no longer than 1 hour at a time, with a break in the middle, and that the accused would need to be monitored as to his ability to cope on a cumulative basis with a likelihood that he would need a few days break after a few days of the hearing, dependent upon how he was feeling. This is likely to extend the trial for a considerable period. It had an initial estimate of 7-10 days and I anticipate that on the formula put forward by the psychologists the estimate would be about 20 two hour days with the likelihood that the trial would proceed for two or three days at a time. It is possible that the trial on that basis could extend over as much as a 7 week period. In those circumstances a trial by jury would be very impractical.

76. It was conceded on behalf of the accused that if he was found to be fit to be tried that he would apply to be tried by judge alone. I am told that the Crown would consent to that application. I do not think that a judge alone trial would affect the estimate of the trial that I have set out.

77. I am not satisfied that the accused would be able to participate in the trial by following the evidence and providing instructions on it during the course of the trial. This would be even more so if the trial was to proceed over a lengthy period, which I think it inevitably will.

78. I am not satisfied that the measures suggested by Dr Banks to ameliorate the stresses of the accused when giving evidence are compatible with the reality of a criminal trial. I think that with even the best endeavours of a cross-examiner there is a real chance of unfairness to the accused, by reason of his impaired cognitive function.

79. Accordingly, I find that the accused is not presently fit to be tried.

Stay of prosecution

80. The accused submitted that irrespective of the Court’s decision on his fitness to be tried that a stay of the prosecution should be granted. At the end of argument, the accused relied on 3 grounds. First, that the accused’s prognosis from prostate cancer was poor and he had a limited life expectancy. This included that the stress of the continuation of the proceedings was likely to lead to the recurrence of his cancer. Second, the stress expected to be experienced from his referral to the Mental Health Review Tribunal (MHRT) was equivalent to that that could be expected from a trial. Third, that the prejudice that had been incurred by the delay in the prosecution of the proceedings could not be remedied.

81. To make good the first and second grounds the accused relied on the letter from Prof Stricker dated 22 January 2016. The effect of that letter was that Prof Stricker had advised the accused to minimise his exposure to significant stress. The accused submitted that by inference the Court should accept that exposing the accused to significant stress would lead to the recurrence of his cancer and his premature death. I do not accept that submission because it involves a leap in reasoning for which there is no proper basis in the evidence. I accept that it is personally distressing for the accused to be facing these charges whilst also battling a terminal disease. At present his cancer is in remission. There is no evidence as to how long that may last for. On the present evidence I do not believe it is contrary to common humanity for the accused to be referred to the MHRT in relation to these matters.

82. The third ground was developed in reply and was an in depth analysis of what was argued to be the limitations of section 165B Evidence Act 1995. The Court must proceed on the basis that a jury or a judge hearing the matter would take into account any warning given pursuant to section 165B. The warning that would be required in this matter, as postulated in the reply submissions of the accused is a significant one. The accused has clearly been significantly prejudiced by the delay in the prosecution of this matter, by reason of the matters set out therein.

83. Bearing in mind that this matter is likely to proceed as a judge alone trial, if it ever does, I am satisfied that an appropriate section 165B warning would be taken into account by the tribunal of fact.

84. Accordingly, I am not satisfied that I should exercise my discretion to stay the proceedings and the application for a stay will be refused.

Orders

85. 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.

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Decision last updated: 09 June 2016