Regina v Michael McKenzie

[2007] NSWDC 351

CITATION:	Regina v Michael McKenzie [2007] NSWDC 351
JUDGMENT DATE:	4 April 2007
JURISDICTION:	District Court of New South Wales
JUDGMENT OF:	Cogswell SC DCJ at 1
DECISION:	Found to be unfit for trial on the balance of probabilities. Referred to the Mental Health Review Tribunal for assessment.
CATCHWORDS:	Criminal law - Fitness for trial - Conflicting psychiatric evidence - Presser principles
LEGISLATION CITED:	ss 6, 12, 14 Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Regina v Presser [1958] VR 45
PARTIES:	Regina Michael McKenzie
FILE NUMBER(S):	06/21/3016
COUNSEL:	Mr Everson for the Crown Mr Jankowski for the accused
SOLICITORS:	Ms Fleming for the NSW DPP Mr Runmore for the accused

JUDGMENT

1. I will deliver judgment in the matter of Michael McKenzie who is in Court. Michael McKenzie has been charged with a series of very serious offences. Three of those offences concern events which are alleged to have occurred between 1 January 2002 and 8 April 2003. For that period he is charged with one count of sexual intercourse with a child under ten which carries a maximum sentence of twenty-five years imprisonment, one count of indecent assault on a child under ten and a further count of inciting a child under ten to commit an act of indecency. There is a statutory alternative pleaded to the first count. In addition, he is charged with two offences arising out of events which allegedly occurred between 26 December 2004 and 31 January 2005. Both counts are of sexual intercourse with a child under ten, the second count having an alternative.

2. In respect of the first period the brief facts are that the accused is alleged to have placed his penis in the vagina of a six year old girl to whom he was the de-facto uncle. In addition he is alleged to have kissed her on the neck, body and the lips as well as telling her to place her hand on his penis. The allegations in respect of the second period concern the same girl who was then eight. It is alleged that he had suggested sexual intercourse to the girl who ran away and locked herself in the toilet. The accused is said to have unscrewed the door handle, picked up the complainant and taken her to his bedroom. He removed her clothes, forced her legs apart and inserted his tongue into her vagina. This he followed with placing his penis into her vagina.

3. The accused was arrested on 18 July 2005 and declined to participate in an interview.

4. At some stage a question of his unfitness to be tried in respect of these charges was raised. Such a question triggers various procedures under the Mental Health (Criminal Procedure) Act 1990 . The accused purported to elect, with the consent of the prosecutor, to have the question of his unfitness to be tried determined by a judge alone. In a judgment dated 6 March 2007 I determined that I was satisfied that he had the capacity to so elect. Accordingly, the proceedings before me were an inquiry into Mr McKenzie’s unfitness to be tried for the offences with which he was charged. In accordance with s6 of the Mental Health (Criminal Procedure) Act the question is to be determined on the balance of probabilities and in accordance with s 12(3) of that Act the onus does not rest on any particular party to the proceedings. Mr McKenzie was represented by counsel.

5. The prosecution evidence was a facts sheet and proforma notice from the prosecution concerning adducing a recorded interview with a child as well as the transcript of two electronically recorded interviews from 2001. The first of those interviews was also the subject of a video recording which I viewed in court. The prosecution also called Dr C L Wong, a consultant psychiatrist. The defence tendered reports from Associate Professor Susan Hayes and Dr Bruce Westmore as well as calling those two witnesses. The importance of the video recording of the ERISP was that it provided an opportunity for the various expert witnesses to view Mr McKenzie’s performance under police questioning so that they could comment on his capacity in that context.

6. I now turn to a review of the expert evidence before me. Dr Wong was called by the Crown. He said that in coming to an opinion regarding the ERISP he took into account the whole ERISP but paid special attention to particular parts which he had highlighted. He said that even leaving aside the ERISP he was still of the opinion that Mr McKenzie was, on the balance of probabilities, fit for trial but the ERISP reinforced that opinion. He did also express the view that whatever the disability was that concerned Mr McKenzie it was longstanding and that he did not expect any substantial change. Indeed he expected that that disability stemmed from his birth.

7. In being questioned about the records of interview and the police questioning in 2001 Dr Wong said in evidence that his opinion was that the questioning was tantamount to cross-examination and was quite adequately handled by Mr McKenzie in his opinion. He agreed that the cross-examination was not as skilful as would have been the case had he been cross-examined by lawyers but asked the rhetorical question, “ It’s the same principle isn’t it? ” He was of the view that the questioning amounted in effect to cross-examination and thought that the police probed him quite well during the interview. He thought that Mr McKenzie responded well and quite adequately to what Dr Wong regarded as some searching questions. Dr Wong was of the opinion that Mr McKenzie could handle court in the same way as a normal person. He acknowledged that the police in questioning Mr McKenzie were very friendly but added that he thought their questions were quite searching. He also thought that despite the friendly demeanour of the police Mr McKenzie was still able to present his case, that is deny any wrongdoing.

8. Turning to the question of whether Mr McKenzie had a communication problem, Dr Wong did not agree that he had a communication problem. He referred to the interviews which various experts had had with Mr McKenzie. He thought that these interviews demonstrated that there was not a problem, otherwise the doctors or rather the experts would not have obtained such a complex history, and there was no note in the experts’ reports of any problem with history. He was asked whether in handling the issue of his capacity to elect, Mr McKenzie had managed to deal with only a single issue. Dr Wong acknowledged that but said that it depends upon what one means by a single issue. He said that Mr McKenzie was asked to deal with several issues, the role of the judge, the idea of a judge alone trial, the role of a jury and the implications of each choice.

9. Turning to the question of whether the level of Mr McKenzie’s disability was mild or moderate, Dr Wong was of the opinion that Mr McKenzie’s disability was mild. The difference between mild and moderate was one quite significant feature Dr Wong said. It was in his opinion the ability to live in the community with or without supervision. He was of the view that Mr McKenzie could go about his daily tasks unsupervised and that was an opinion expressed by his family doctors who are quite familiar with him.

10. As to the psychometric testing undertaken by Associate Professor Hayes to which I will refer shortly, Dr Wong expressed the view that they were important in assessing a person’s intelligence but they needed to be seen in the context and in conjunction with other evidence. Dr Wong acknowledged that Mr McKenzie had difficulty with the concept of a prosecution as an institution but Dr Wong was of the opinion that Mr McKenzie was aware that the trial consists of an adversarial process.

11. Dr Wong was asked about Mr McKenzie’s capacity to concentrate during the length of a trial which might be several days up to five days. Dr Wong was of the opinion that regardless of the length of the trial the court rarely sits for more than two hours and Dr Wong could see no reason why, with appropriate breaks, Mr McKenzie would not be able to cope with the court process or at least have the capacity to concentrate. He in fact referred to evidence that Mr McKenzie is able to concentrate for more than two hours because of his interviews with the various experts. Dr Wong concluded by expressing the opinion that Mr McKenzie had met all of the criteria referred to in Regina v Presser [1958] VR 45 at 48.

12. Turning next to the evidence of Associate Professor Hayes called by the defence, Associate Professor Hayes had administered various intelligence tests. They were important because it demonstrated that Mr McKenzie had an intellectual disability and demonstrated the level of that disability. Associate Professor Hayes was of the opinion that Mr McKenzie needed assistance and the degree of the assistance depended upon the degree of the disability. Associate Professor Hayes listed the various tests which she had administered. She also indicated that the various levels of intellectual disability range from borderline (in a 70 to 80 IQ) to mild (50 to 70 IQ), moderate (35 to 50 IQ) and severe (20 to 35 IQ). A profound disability was an IQ of less than 20. Mr McKenzie’s overall score in 2001 was 40 and in 2005 was 45. She assessed his level of disability as moderate and expressed the opinion that he was therefore in a category lower than 99.9 per cent of the population. His overall adaptive level was at about 50 so she regarded him on the border of mild and moderate and his social figure was about 53 which put him at the bottom of the mild range.

13. Turning to Mr McKenzie’s performance in the ERISPs Associate Professor Hayes was of the opinion that part of the ERISP was a narrative, telling a story of what he did on various days. She said that we have no idea whether or not it was accurate. She expressed the view that if there were leading questions Mr McKenzie was more likely to agree with the questioner.

14. Turning to the Presser criteria, she reported that Mr McKenzie could not tell her the charges and the best that he could manage was that he had touched a nine year old. He had no sense of the distinction for example between a sexual assault and an indecent assault. He did know the difference between pleading guilty and not guilty. However as to the right of challenge he did not understand, in her opinion, what a jury was so that he could not challenge. Being asked about his capacity, in the last day or two before she gave evidence, to elect to be tried by judge alone or at least to elect to have the inquiry by a judge alone, Associate Professor Hayes was of the view that in the past few days he had intensive tutoring about the role of a jury so that he was able to grasp at that stage what a jury was but she said that he will forget unless reminded each day. He regards them as twelve strangers.

15. As to his capacity to follow generally the nature of the proceedings she was of the view that he does not understand who the adversary is, although he knows the process is adversarial. Following the course of the proceedings she was of the opinion that he would not be able to do that because information would, as she termed it, decay overnight, so that each day he will take some in but will forget it overnight, being unable to retain the information.

16. Questioned about whether he would understand the evidence against him, she was of the opinion that he would be able to understand simple but not complex evidence. Asked whether more breaks in the proceedings would help she said that they would not really help because it was what was happening between the breaks which was what was important. There was still, in her opinion, a huge amount to take in, process, remember and reproduce himself if he wanted to instruct his legal counsel.

17. Questioned about Mr McKenzie’s capacity to make a defence or answer the charge she said that he does not really understand the idea of evidence, thinking that that is equivalent to documentary material. She reported that Mr McKenzie had told her that he did not know what giving evidence meant. She also reported significantly an opinion that Mr McKenzie could not place himself in the time span when the alleged offences happened. He regarded it as a family feud and repeated her opinion that he could not place himself in that time span.

18. Finally Dr Westmore addressed in his evidence before me the Presser criteria. Dr Westmore was of the opinion that Mr McKenzie has an understanding of what he has been charged with, at least the basics, that there was a sexual incident, and that he had a capacity to plead guilty or not guilty. These two areas were less of a problem in the opinion of Dr Westmore.

19. As to jury challenges, Dr Westmore was of the view that this was really impossible for a man of Mr McKenzie’s level of intelligence. Dr Westmore thought that Mr McKenzie would not have any idea about a jury, the difference between men and women, old and young, racial background, and would have to rely entirely upon his lawyer in order to register a challenge.

20. Insofar as the question of him understanding the nature of the charges were concerned Dr Westmore was of the opinion that Mr McKenzie’s major problem in this area was communication. He didn’t think that Mr McKenzie would be able to follow the course of the proceedings, in particular if they were around five days. Even one day or one hour might be a problem. Dr Westmore was of the opinion that it would be necessary to stop after every sentence and ask “ Do you understand the question? ” Asked whether the manner of questioning or breaks in the proceedings may assist, questioning which may take into account the needs of the witness, he was of the opinion that the ERISP did not indicate a capacity to undergo cross-examination. He regarded the questioning in the ERISP as fairly benign. He described it as kind, gentle and not containing any accusations. He thought that Mr McKenzie would not be able to give an account of himself.

21. He also regarded the setting of the ERISP as being relatively speaking fairly benign whereas in court there would be a different type of questioning where the probing would be more significant even if protected by the judge in accordance with the rules of evidence.

22. Hence the question for me is what is more likely? Is Mr McKenzie fit for trial or unfit for trial? Both conclusions are agitated with the support of expert evidence. Dr Wong’s views are persuasive, particularly coming from a forensic psychiatrist of his experience. However I think that Mr McKenzie would have real difficulties in facing a trial and I have decided on balance that he is unfit for trial. I come to that decision for the following reasons.

23. Firstly, the psychological tests administered by Associate Professor Hayes carry a degree of objectivity. Although, as Dr Wong says, they need to be seen in a wider context, they do indicate that Mr McKenzie is functioning in terms of his adaptive behaviour overall at a level lower than 99.9 per cent of the population. They also highlight his worst area of function as communication.

24. Secondly, I accept Dr Westmore’s description of the questioning in the ERISP as being fairly benign. Mr McKenzie was questioned, as Dr Westmore said, in a kind and gentle way with no confrontational accusations. I do not regard that questioning as tantamount to cross-examination which was Dr Wong’s view.

25. Thirdly, more specifically I think Mr McKenzie would fail to measure up in respect of the following requirements for fitness for trial as laid down in Presser .

26. Following the course of the proceedings so as to understand what is going on in court in a general sense: although I accept that the provision in advance of a video of the complainant’s evidence will significantly assist Mr McKenzie in giving instructions, I also accept, as his counsel argues, that such a procedure will not be available in respect of the complainant’s cross-examination and in respect of other witnesses. There is, I gather, an issue about whether a complaint has been fabricated. Although as the Crown Prosecutor submitted, it appears that Mr McKenzie is able to assert that the allegations are false, that he was never alone with the complainant and that she was put up to it by her mother, there is still the problem of Mr McKenzie following the course of the proceedings, the evidence given by witnesses apart from the complainant and his ability to respond with appropriate instructions to his legal counsel.

27. It has to be acknowledged that an attempt might be made to manage the trial in the way suggested by the Crown Prosecutor, allowing for frequent breaks. However, Associate Professor Hayes says that information will deteriorate overnight, in the sense that Mr McKenzie will not be able to retain what he learnt on a particular day. As Associate Professor Hayes says there remains a huge amount for Mr McKenzie to take in, process, remember and then reproduce in order to convey to his legal representatives. Dr Westmore thinks Mr McKenzie would have to be asked whether he understood each question.

28. Next, in respect of making a defence or answer to the charge. I also accept Associate Professor Hayes’ evidence that Mr McKenzie will have a real difficulty in placing himself in the respective time zones. She referred to that in her evidence. In addition Dr Westmore was of the view that in this case the years of the allegations, a range of 2002 to 2005, would be a major problem for Mr McKenzie. Both sets of offences are alleged to have occurred over a period of time, some years ago. I think that will add to Mr McKenzie’s inability to make his defence and answer the charges.

29. Next, as for understanding generally the nature of the proceedings, I accept that although Mr McKenzie understands the fact that he is facing a court case he appears to attribute it to a family feud and has real difficulty understanding the role of the prosecution, a factor acknowledged to some extent by Dr Wong. As Associate Professor Hayes says, Mr McKenzie knows the proceedings are adversarial but does not understand who is the adversary.

30. As to exercising his right of challenge, both Associate Professor Hayes and Dr Westmore think Mr McKenzie will not be able to adequately exercise his right of challenge. I have referred to their evidence about this. For the above reasons I am satisfied on the balance of probabilities that Mr McKenzie is unfit for trial. Now Mr Jankowski, Miss Fleming, that has statutory consequences.
JANKOWSKI: The matter should be referred to the Mental Health Review Tribunal for assessment your Honour.

HIS HONOUR: Just let me get the Act. Section 14 isn’t it? If following an inquiry an accused person is found unfit to be tried the proceedings brought against the person must not, except for the purpose of doing the things referred to in paragraph (b), be recommenced or continued and the court must refer the person that the Tribunal, and may discharge any jury. No. And may, pending the determination of the tribunal do any one or more of the following. Adjourn proceedings, grant person bail, remand the person in custody or make any other order as the court considers appropriate. So obviously I refer him to the tribunal. Now what about the s 14(b) options? Do you have an application?

JANKOWSKI: I have an application for bail.

HIS HONOUR: Ms Fleming, what’s your attitude to that?

FLEMING: I’m instructed the Crown does not oppose bail continuing on the conditions as outlined previously.

HIS HONOUR: Thank you. Do we have those conditions.

HIS HONOUR: Do we have those conditions somewhere Ms Fleming?

FLEMING: Yes your Honour I do have a notation. Would you like me to read them out?

HIS HONOUR: Say that again.

FLEMING: I do have a record of those conditions.

HIS HONOUR: Are they long?

FLEMING: There are five conditions your Honour.

HIS HONOUR: All right, what’s the date of those conditions? I’ll refer to them by date.

FLEMING: 5 October 2005, Supreme Court bail conditions and they were varied on 28 November 2005, conditions 2 and 4 were varied.

HIS HONOUR: Good, I’ll come back to you on that. Anything either of you want to say about the orders?

JANKOWSKI: No your Honour. I think with respect to bail it just should be bail to a date to be fixed. It’s because the tribunal have to assess whether he will become fit within 12 months or not.

HIS HONOUR: It says bail in accordance with the Bail Act. What does that say about - do I have to fix a date? What does the Bail Act say?

JANKOWSKI: No as I understand your Honour doesn’t have to fix a date. It can be to a date to be fixed as I understand it.

HIS HONOUR: Is that right? Isn’t that bail subject to an undertaking that somebody appears before the court on a particular day?

JANKOWSKI: It is your Honour but of course when one doesn’t know the date, for example when this matter was adjourned on the last occasion there was no date fixed because your Honour wasn’t sure which date your Honour would deliver judgment. So the condition on that occasion was that he be bailed to a date to be fixed.

HIS HONOUR: All right, I’ll just have a look at the Bail Act.

JANKOWSKI: I might just indicate that if your Honour is of the view that a date should be--

HIS HONOUR: No I’m just trying to find out what my view is. Ms Fleming do you have a view on that, whether I have to fix a date?

FLEMING: Your Honour it would be my understanding that the matter could - as it is being referred to the Mental Health Review Tribunal if it were made a condition of his bail that he report to that office within a certain number of days then in effect--

JANKOWSKI: I don’t think that’s how it works. I think they just assess the matter on the documents your Honour. There’s no as it were requirement that he attend the tribunal for the purposes of that assessment. It’s not like Probation and Parole Service requirement your Honour. The papers are simply referred to the tribunal and then they determine the matter in the fullness of time in whichever way they consider fit. My recent experience with the tribunal is that it takes something in the order of two months for them to consider the matter. That’s more or less the range, although I must say that the case I’m thinking of did occur over the Christmas period, whatever that delay would mean your Honour.

31. In this case the orders I make are in accordance with s 14 of the Mental Health (Criminal Procedure) Act 1990 I refer Mr McKenzie to the Mental Health Review Tribunal. I adjourn these proceedings to a date to be fixed and I grant Mr McKenzie bail in accordance with the Bail Act 1978 , that bail to be on the same conditions as was determined by the Supreme Court on 28 November 2005 as amended.

JANKOWSKI: Your Honour just for the purposes of entering the bail, does the Court file disclose a previous bail undertaking which indicates those specific conditions imposed by the Supreme Court?

HIS HONOUR: I don’t know the answer to that. Do you want to have a look at it?

JANKOWSKI: Yes if I may your Honour just so there are no problems in the office.

HIS HONOUR: All right and I’ll put the exhibits on the court file which includes MFI 1 because a number of items in that MFI were marked as exhibits. Thanks for your assistance with that Mr Jankowski and Ms Fleming and if you would convey my thanks to Mr Everson as well. I was assisted by both counsel in this matter. Mr McKenzie apparently needs to go upstairs to enter his bail.

JANKOWSKI: Yes your Honour I’ll take him up there. I was just wondering if I could have a look at the file just to double check.

HIS HONOUR: Yes it’s coming to you.

oOo