Regina v Michael McKenzie [2007] NSWDC 351

Regina v Michael McKenzie [2007] NSWDC 351

Mr McKenzie was unfit for trial on the balance of probabilities because the objective psychological testing showed very low adaptive functioning and communication deficits, the ERISP questioning was benign and not equivalent to cross-examination, and he would not adequately meet key Presser requirements, including following the proceedings, making a defence or answer to charges spanning past time periods, understanding generally the adversarial nature of the proceedings and the role of the prosecution, and exercising his right of jury challenge.

Jurisdiction
Australia
Judgment Date
04 April 2007
Procedural Posture
Criminal Proceedings Concerning Fitness for Trial / Judge Alone Inquiry Into the Accused's Unfitness to Be Tried
Outcome
Found unfit for trial on the balance of probabilities and referred to the Mental Health Review Tribunal for assessment.
Legal Topics
['fitness for Trial' 'conflicting Psychiatric Evidence' 'presser Principles' 'intellectual Disability' 'mental Health Review Tribunal Referral']
['criminal Law' 'criminal Procedure' 'mental Health Law'] ['fitness for Trial' 'conflicting Psychiatric Evidence' 'presser Principles' 'intellectual Disability' 'mental Health Review Tribunal Referral']

Case Brief

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Procedural Posture

Criminal Proceedings Concerning Fitness for Trial / Judge Alone Inquiry Into the Accused's Unfitness to Be Tried

Legal Issues

  1. 1 ['Whether Michael McKenzie was unfit to be tried on the balance of probabilities.' 'Whether the accused could follow the course of proceedings, make a defence or answer to the charges, understand the nature of the proceedings, and exercise the right of challenge.' 'How conflicting expert psychiatric and psychological evidence should be assessed in applying the Presser criteria.']

Ratio Decidendi

Mr McKenzie was unfit for trial on the balance of probabilities because the objective psychological testing showed very low adaptive functioning and communication deficits, the ERISP questioning was benign and not equivalent to cross-examination, and he would not adequately meet key Presser requirements, including following the proceedings, making a defence or answer to charges spanning past time periods, understanding generally the adversarial nature of the proceedings and the role of the prosecution, and exercising his right of jury challenge.

Court Disposition

Found unfit for trial on the balance of probabilities and referred to the Mental Health Review Tribunal for assessment.

Orders

  • ['Mr McKenzie is referred to the Mental Health Review Tribunal under s 14 of the Mental Health (Criminal Procedure) Act 1990.' 'The proceedings are adjourned to a date to be fixed.' 'Mr McKenzie is granted bail in accordance with the Bail Act 1978 on the same conditions as determined by the Supreme Court on 28...