R v Michael McKenzie

[2009] NSWDC 267

CITATION:	R v Michael MCKENZIE [2009] NSWDC 267
JUDGMENT DATE:	3 July 2009
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Mr McKenzie is unfit to be tried, referred to the Mental Health Review Tribunal and granted bail.
CATCHWORDS:	CRIMINAL LAW - fitness to be tried - capacity to elect inquiry to be conducted by judge alone - whether unfit to be tried on balance of probabilities
LEGISLATION CITED:	Mental Health (Forensic Provisions) Act 1900 s 7(1), s 12, s 14 Bail Act, 1978
CASES CITED:	The Queen v Presser [1958] VR 45
PARTIES:	Regina Michael McKenzie
FILE NUMBER(S):	2006/21/3016
COUNSEL:	Mr Patrick Mr Jankowski
SOLICITORS:	Director of Public Prosecutions

JUDGMENT

1. Michael McKenzie has been charged with a number of very serious offences under the Crimes Act 1900. Those offences are listed in an indictment which became exhibit D before me. The indictment became an exhibit because it has not yet been formally presented to the court for the purposes of arraignment for a reason which I will explain in a moment. I describe the offences as very serious because they include a number of allegations that Michael McKenzie had sexual intercourse with a child aged under ten years. There are other charges of committing an act of indecency and inciting a child under ten to commit an act of indecency.

2. The reason that the indictment has not been presented yet for the purposes of an arraignment is that there has been raised a question of Mr McKenzie’s fitness to be tried for these offences. Section 7(1) of the Mental Health (Forensic Provisions) Act 1990, which I will refer to as the Act, provides that such a question is, so far as practicable, to be raised before the person is arraigned on a charge in respect of the offence. Hence it was appropriate for the question to be raised before any arraignment occurred.

3. A question has in fact been raised in the past about Mr McKenzie’s fitness to be tried. It was raised some years ago and in 2007 after a contested hearing I determined that he was unfit to be tried and I made orders, including referring him to the Mental Health Review Tribunal. Because of an administrative oversight that referral never occurred and over a year after the orders the question of his fitness has been raised again. For reasons which I gave in another judgment it is possible and appropriate to raise again the question of a person’s fitness to be tried despite the order following an earlier finding of unfitness not being complied with.

4. It appears that Mr McKenzie’s fitness to be tried has been raised again by both Mr McKenzie’s solicitors and the solicitor for the Director of Public Prosecutions obtaining up to date medical reports in respect of Mr McKenzie. Those up to date medical reports have been tendered today. In my opinion they clearly raise the question of Mr McKenzie’s fitness to be tried.

5. I am satisfied that it has been raised in good faith and if I did not determine earlier I now determine that an inquiry should be conducted in respect of the question of Mr McKenzie’s unfitness to be tried.

6. Mr McKenzie has elected for that inquiry to be conducted by me sitting alone as a judge. By a document dated 21 April 2009 signed by Mr McKenzie and his solicitor, Mr McKenzie elected to be tried by a judge alone and acknowledged that he sought and received advice from his solicitor. The election is countersigned by Mr Patrick, a Crown Prosecutor briefed by the Director of Public Prosecutions.

7. A preliminary question arises as to Mr McKenzie’s capacity to make that election. On the balance of probabilities I am satisfied that he does have - or did have - that capacity to make the election at the time that he made the election. I am so satisfied in reliance upon two reports. One is a report of Dr Allnutt dated 4 November 2008. Dr Allnutt on the last page of that report expressed the view that Mr McKenzie “would be able to decide on judge alone.” The second source for my opinion is a report by Professor Susan Hayes. In her report which became exhibit 2 dated 26 February 2009 she expressed the view that Mr McKenzie “can make the decision for a judge alone trial.” There is no evidence to the contrary on that question. I am therefore satisfied on the balance of probabilities that Mr McKenzie had at the relevant time the capacity to exercise the election which has been made for this question to be tried by me sitting as a judge alone.

8. The inquiry is to be conducted in accordance with s 12 of the Act. Mr McKenzie is represented by Mr Jankowski of counsel who is an Australian legal practitioner. It is not being conducted in an adversary manner and I note that the burden of proof does not rest on any particular party to the proceedings. The question for me is whether I am satisfied on the balance of probabilities that Mr McKenzie is unfit to be tried.

9. Mr Jankowski agitates on behalf of his client that I should be so satisfied and draws my attention to exhibits 1 and 2. Exhibit 1 is a report by Dr Bruce Westmore dated 13 February 2009. Dr Westmore is a well known and highly regarded forensic psychiatrist. He diagnosed Mr McKenzie as suffering from mental retardation. He expressed certain opinions by reference to the appropriate criteria in assessing the question of a person’s fitness for trial. Those criteria were set out in The Queen v Presser [1958] VR 45. Dr Westmore expressed the opinion that “Mr McKenzie’s ability to make his defence or answer the charge, however, is compromised.” He was also of the view that Mr McKenzie’s capacity to follow the proceedings was compromised. These consequences were the result of a fundamental problem with comprehension. That problem will, Dr Westmore thought, occur constantly and repeatedly throughout the trial. He concluded that because of the problems which he referred to in his report, which I accept, he was of the view that Mr McKenzie “is unfit to be tried and I believe that condition will not alter within the next twelve months.” I should note that Dr Westmore had expressed a similar opinion previously and also expressed the view that Mr McKenzie’s condition was static and unlikely to improve with time.

10. Professor Hayes is also well known and highly regarded by the court. She is now Professor of Behavioural Sciences in Medicine at the University of Sydney and a clinical psychologist. She expressed the opinion in exhibit 2 -her report of 26 February 2009 - that Mr McKenzie “is moderately to mildly intellectually disabled”. She thought that he was unfit to be tried because he does not understand the charges nor can he participate effectively in his own defence. In addition she was of the opinion that he cannot comprehend the nature or the seriousness of the charges against him nor even the adversarial nature of the proceedings. She thought that neither did he understand important aspects of the criminal justice system and was unable to instruct his solicitor adequately. She thought that he would be unable to maintain concentration during the course of the trial. She agreed with Dr Allnutt’s concerns about Mr McKenzie’s ability to follow the proceedings and the likelihood that he may have misunderstood points during the hearing and his reduced ability to comprehend language used in court.

11. Dr Stephen Allnutt is also a Forensic Psychiatrist well known and respected by the courts. He expressed in exhibit A, a report of 4 November 2008, some concern about Mr McKenzie’s capacity to follow the proceedings. He developed his views after seeing Mr McKenzie on 21 April 2009 and prepared exhibit B which is an up to date report of 4 May 2009. He expressed the view in that report that whether or not Mr McKenzie is fit to stand trial is what he described as a “marginal issue”. He thought that there had been an improvement in Mr McKenzie’s understanding of the court process over time. Dr Allnutt, I might add, expressed the view that any improved understanding was probably the result of the repetition involved in Mr McKenzie coming to court a number of times over the years, rather than the result of a genuine understanding of the court processes. Dr Allnutt was concerned about Mr McKenzie’s capacity to tell the court his version of the events. He made reference to an interview given by Mr McKenzie to the police, but expressed further concern that in cross-examination Mr McKenzie might misunderstand some questions and not indicate this to the court, hence the misunderstanding would be lost to the court and - as the doctor correctly pointed out - the court would be at risk of being misled by the responses. Dr Allnutt was also of the opinion that Mr McKenzie’s capacity to follow the proceedings was what he described as “of concern”. He referred to Mr McKenzie’s communication difficulties and Dr Allnutt concluded that he could not confidently rule out “the possibility that he will still misunderstand some issues during the hearing”. This could occur even if he had breaks in the proceedings and meetings with his counsel during the breaks. Dr Allnutt concluded as follows:

“If the court is not satisfied that it can accommodate him and provide him with access to counsel regularly and frequently to enable counsel to review what had transpired, clarify issues with him and seek further instruction (including during a lengthy cross-examination as a witness), then in my opinion he would not meet the minimum standards required to be regarded as fit to stand trial and should be found unfit to stand trial.”

12. I am not satisfied that he could be accommodated to the extent that there would be reduced sufficiently any risk that he would misunderstand some of the questions and that that misunderstanding may be, as Dr Allnutt expressed it, lost to the court.

13. Based upon Dr Westmore’s report and Professor Hayes’ report and reinforced to some extent by Dr Allnutt’s report, I am satisfied on the balance of probabilities that Mr McKenzie is unfit to be tried.

JANKOWSKI: Your Honour there was one matter, where your Honour was reading Dr Allnutt’s opinion concerning having improved his understanding over time, your Honour then referred to Dr Allnutt as having expressed the opinion that that was because of the repetition--

HIS HONOUR: I should have said Westmore.

14. Yes, what Mr Jankowski has just said is correct. A reference to Dr Allnutt being of the view that the understanding improved because of repetition should have been a reference to Dr Westmore being of that view.

JANKOWSKI: So now your Honour turns to s 14.

HIS HONOUR: I’ll make the orders in a moment, but I make an order under 14A referring him to the tribunal.

JANKOWSKI: I would ask your Honour to adjourn the proceedings and to continue my client’s bail until such--

HIS HONOUR: When should I adjourn the proceedings until?

JANKOWSKI: Until such time as s 16(4) is satisfied. Section 16(4) indicates if the tribunal determines that he’s not fit within - or he won’t be fit within 12 months, notifies the DPP of that determination.

HIS HONOUR: So what do I do, adjourn it indefinitely, so to speak?

JANKOWSKI: Yes your Honour, adjourn the matter indefinitely until such decision by the tribunal and then the director determines what to do.

HIS HONOUR: What’s the order that’s normally made?

JANKOWSKI: I’d simply just ask your Honour to continue his bail to a date to be fixed.

HIS HONOUR: Yes I understand that, but the adjournment, I just adjourn it do I?

CROWN PROSECUTOR: Adjourn it generally, your Honour.

15. Accordingly, under s 14 of the Mental Health (Forensic Provisions) Act 1990 I refer Mr McKenzie to the Mental Health Review Tribunal. I grant him bail in accordance with the Bail Act 1978 on the conditions which are presently fixed, and I adjourn these proceedings generally.

Is that all I need to do?

JANKOWSKI: Yes, your Honour. Probably a matter your Honour, where your Honour is not part-heard in any sense now, it just takes its normal course.

HIS HONOUR: As it should have before. Perhaps somebody should be monitoring it. I’m sure it wouldn’t happen twice, but perhaps somebody should keep an eye on it this time.

CROWN PROSECUTOR: I think perhaps we’ll undertake to contact the Registry and ensure it’s gone the right way.

HIS HONOUR: Somebody from the DPP--

CROWN PROSECUTOR: Yes, your Honour.

HIS HONOUR: Thank you, that would be a good idea I think.

ADJOURNED

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