Regina v Michael McKenzie [2007] NSWDC 351

New South Wales District Court

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.