Supreme Court New South Wales Medium Neutral Citation: R v Poynton [2016] NSWSC 615 Hearing dates: 13 May 2016 Date of orders: 13 May 2016 Decision date: 13 May 2016 Jurisdiction: Common Law Before: Campbell J Decision: Under s 11 Mental Health (Forensic Provisions Act 1990) I find that the accused, Daniel Poynton is unfit to be tried for the offence of murder; Pursuant to s 14 of the Act, I refer the accused to the Mental Health Review Tribunal; Under s 14(b)(iii) of the Act, I remand the accused in custody until the determination of the Tribunal has been given effect to and until further order of the court; Direct the Registrar to provide the following documents to the Tribunal: A copy of my reasons for judgment; A copy of the reports of Drs Chew and O'Dea; A copy of the Crown Case Statement; A copy of the written submissions of counsel. Under s 7 Court Orders Suppression and Non-Publication Act 2010 (NSW), the publication of these reasons is restricted in the interests of the administration of justice to the legal representatives of the parties, and the Mental Health Review Tribunal until completion of procedures under Mental Health (Forensic Provisions Act) 1990 (NSW) or, if applicable, jury verdict. Under s 7 Court Orders Suppression and Non-Publication Act 2010 (NSW), the publication of these reasons is restricted in the interests of the administration of justice to the legal representatives of the parties, and the Mental Health Review Tribunal until completion of procedures under Mental Health (Forensic Provisions Act) 1990 (NSW) or, if applicable, jury verdict. Catchwords: CRIMINAL LAW – offences against the person – murder – Legislation Cited: Mental Health (Forensic Provisions) Act 1990). Cases Cited: Kesavarajah v the Queen (1994) 181 CLR 230 VR 45 Category: Principal judgment Parties: Regina (Plaintiff) Daniel Poynton (Defendant) Representation: Counsel: T Thorpe (Crown Prosecutor) E. Wilson SC (Accused) Solicitors: NSW Director of Public Prosecutions (Crown) Legal Aid (Accused) File Number(s): 2014/336896 Publication restriction: Matter finalised - non publication order lifted 1. Mr Poynton is charged with murder. In brief the crown case is that he shot Jamie Edwards and Joelene Joyce dead in the early hours of Wednesday 12th November 2014 at Moama, New South Wales. The alleged murders occurred against the background of a souring relationship between Poynton and Edwards which on the prosecution case related to the supposed involvement of one or the other in the disappearance of a considerable amount of the drug ice. Moreover, Poynton believed that Edwards was having an affair with the former's girlfriend, a matter that may say something about his then mental condition. 2. Mr Poynton has been committed for Trial in this Court, but has yet to be arraigned because a question has arisen about his fitness to be tried for the offences charged (s 5 Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act)). 3. In accordance with s 8 of the Act it has been determined that an inquiry into Mr Poynton's fitness to be tried should be conducted before trial. 4. I am satisfied in accordance with s 10(2) of the Act that the question of Mr Poynton's unfitness has been raised in good faith. He has undergone psychiatric examination arranged by his legal representatives and by the prosecution. The inquiry contemplated by s 10 of the Act has been conducted before me sitting alone without a jury, as required by s 11. Principles of law to be applied 1. I direct myself that the inquiry is to be conducted in a non-adversarial manner. Although the question of Mr Poynton's fitness is to be determined on the balance of probabilities, no onus of proof rests on any particular party to the proceedings. 2. If I find Mr Poynton fit he will be tried in the usual way. A finding of unfitness requires the accused to be referred to the Mental Health Review Tribunal to determine whether he is likely to become fit to be tried within 12 months. The tribunal must also determine whether he suffers a mental illness or condition for which treatment is available in a hospital. It must report its determinations to the Court. 3. If the tribunal is not satisfied Mr Poynton will become fit within 12 months prosecuting authorities have a discretion to require the matter to be dealt with by special hearing. In the circumstances of this case it is not necessary to delve further into the possible consequences of a finding of unfitness. The important thing to appreciate is that a finding of unfitness does not of itself bring the prosecution to an end. Rather it diverts the process into an investigation of Mr Poynton's condition, available treatment and the appropriate procedures for finalising the prosecution. 4. The legal test of unfitness is well settled by the decision of the High Court of Australia in Kesavarajah v the Queen (1994) 181 CLR 230 at 245 by Mason CJ, Toohey and Gaudron JJ, Deane and Dawson JJ substantially agreeing. The majority justices adopted the principle as stated by Smith J in R v Presser (1958) VR 45 at 48. Their Honour's summarised the principles in the following terms: In Reg. v. Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice. Those standards, which are based on the well-known explanation given by Alderson B. to the jury in R. v. Pritchard, require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge. (Citations omitted) The test is to be applied in a reasonable and common sense fashion. Psychiatric diagnosis 1. In the circumstances of this case there is no disagreement between the psychiatrists Dr Chew and Dr O'Dea that Mr Poynton suffers from a recognised diagnosable psychiatric condition. Each of whom have examined Mr Poynton twice, providing a report following each examination. Dr Chew's reports are dated 1st August 2015 and 19th March 2016; Dr O'Dea's reports are dated 29th February 2016 and 12th May 2016; and all form part of Exhibit "A". 2. Dr Chew diagnoses Mr Poynton's condition as schizophrenia with ongoing active psychotic symptoms, notwithstanding compliance with high doses of anti-psychotic medication. He agrees with Dr O'Dea that Mr Poynton's condition can be described as "treatment resistant". 3. To very substantially the same effect Dr O'Dea diagnoses Mr Poynton as suffering from a paranoid schizophrenic illness, complicated by poly-substance abuse disorder. The relevant substances are amphetamines and alcohol. Mr Poynton continues to have active psychotic symptoms, notwithstanding appropriate anti-psychotic treatment. Both experts express the view that despite some recent improvement in symptoms Mr Poynton continues to report symptoms which remain significant. He exhibits signs of schizophrenic illness which is not yet adequately controlled. 4. Both experts express the view he is unfit by reason of his mental illness to be tried. In his report of 1st August 2015, Dr Chew stated that Mr Poynton's active delusions and hallucinations make it "difficult for him to concentrate and grasp the entirety of what is going on". At first blush he appears superficially to understand the matters summarised in Kesavarajah, but it was apparent because of his illness, his attention and concentration were predominantly focused on fearfully watching his surroundings. Moreover, his active delusions are centred on the police and other key participants in the process of the administration of justice including the lawyers involved and the Court. He told Dr Chew that he believed that corrective services officers wanted to kill him and that the lawyers, judge and jurors could be part of the plan. This particular delusion remained active at the time of the second examination in March 2016. He believed he was being poisoned and that the corrections officers were colluding with the Court against him. He was not completely sure if his own lawyers were not "in with the officers". 5. Dr O'Dea first examined Mr Poynton on 26 September 2015. Mr Poynton told him about auditory hallucinations he was suffering. The voices told him to kill himself or attack his cellmate. He believed the voices were prison officers "because they come at night time … who else would they be", Mr Poynton asked. He also said he receives messages from the television telling him to kill himself. He believed the offences were related to the voices. Dr O'Dea formed the impression that Mr Poynton's paranoid delusions extended from the prison officers to court officials. As I have said although Dr O'Dea found him somewhat better at the date of his second examination on 1st May 2016, he remained actively psychotic. Past psychiatric history 1. Mr Poynton told Dr Chew that he had had extensive contact with mental health services in New South Wales, Victoria and Queensland. He had been diagnosed with attention deficit disorder as a child. In unrelated custody in late 2010 and early 2011 it was recorded that he was experiencing paranoia and auditory hallucinations "a bad creature of no particular sex was telling him to do bad things". This continued for a period. On 11th January 2011 he was examined by Professor Greenburg, a psychiatrist, who found that he was suffering from auditory hallucinations and prescribed anti-psychotic medication. 2. He was treated involuntarily under the Victorian mental health legislation in 2013. The working diagnosis at the time was a drug induced psychosis, but a differential diagnosis of "evolving major psychotic illness" was also made. 3. On 27th June 2013 he was taken to the local emergency department by police as he was self-harming and expressing suicidal ideation. His symptoms were related to a recent history of ice use. He was also suffering auditory hallucinations. He was treated as an inpatient between 1st July 2013 and 15th July 2013 and discharged on a community treatment order. However, he fell out of contact with mental health services in about August 2013. There was no record of him receiving treatment from then until the time of the alleged offending. 4. Since being taken into custody on remand for these charges in November 2014, Justice Health records consistently record him suffering from psychosis. Early on in his incarceration Dr Matt Jones, psychiatrist, diagnosed "likely chronic mental illness, complicated by ice. Auditory hallucinations and paranoia were prominent and he was treated with the anti-psychotic medication Olanzapine. He was eventually transferred to the Mental Health Screening Unit at the MRRC. He has been treated with an injectable, long-acting, anti-psychotic medication known as Paliperindone Depot. 5. As I have said, symptoms have continued with only some improvement. He is apparently compliant with medication, but as I have pointed out his condition seems to be somewhat treatment resistant and both Dr Chew and Dr O'Dea agree that the treatment has been less than optimal. They also agree that consideration should be given to his admission to a secure psychiatric facility for a trial of injectable Clozapine. There is some prospect that this treatment may bring his disease under control "within a twelve month time-frame". 6. I am well satisfied on the balance of probabilities that Mr Poynton continues to suffer paranoid schizophrenia. In the past, this has been complicated by poly-substance abuse. Despite his abstinence from drug use in custody he remains subject to active debilitating symptoms of paranoia, delusional thought processes and severe auditory hallucinations. Application of Presser criteria 1. Both Dr Chew and Dr O'Dea agree that Mr Poynton has been and remains unfit to stand trial due to his mental illness. 2. In his report of 1st August 2015, Dr Chew said the following: I attempted to formally examine each aspect of the Presser criteria with him. Mr Poynton appeared to understand what he was charged with. He superficially understood the concept of plea. He superficially seemed to understand the effect of evidence. I began to explore his more general understanding about proceedings. However, he was interrupted by his understanding of the corrective services officers and police wanted to kill him and that other parties involved in the process including lawyers, judges and possibly jury if involved, could be part of this plan. I began to explore defences and the mental illness defence as an example, and he did not appear to understand this concept. 1. The results were very similar in March 2016. He continued to believe that the other participants in the legal process, including the Court were colluding against him. 2. Following his examination of 26th September 2015, Dr O'Dea formed the opinion that Mr Poynton had been able to demonstrate only some basic understanding of the charges, the nature and consequences of the various pleas available to him and the roles and responsibilities of the various participants in the trial process. Despite the chance of some improvement in these perceptions, Dr O'Dea was of the view that he would find it significantly difficulty to adequately instruct his lawyers and follow the evidence in order to make an adequate defence to the charges. The stress of an extended trial ran the significant risk of exacerbating his schizophrenic illness further at that stage. 3. Dr O'Dea remained of the view that Mr Poynton would find it difficult to adequately instruct his solicitors and counsel, follow the evidence and participate sufficiently in the trial process to make an adequate defence. Again, stress of an extended trial was likely to risk exacerbation of his schizophrenic illness. 4. I am satisfied on the balance of probabilities that due to his mental illness, Mr Poynton cannot at this time be tried without unfairness or injustice. Specifically, I am satisfied that he is unable to sufficiently understand that a trial is an inquiry as to whether he committed the offence charged, given his delusion about corrections officers, police officers and the court colluding against him. I am satisfied that he would have difficulty understanding the substantial effect of the evidence that may be given in support of the prosecution and, especially if there is a flare-up in his symptoms, to adequately instruct counsel to make a defence or answer to the charge. Orders 1. For these reasons my orders are: 1. Under s 11 Mental Health (Forensic Provisions Act) 1990 NSW I find that the accused, Daniel Poynton is unfit to be tried for the offence of murder; 2. Pursuant to s 14 of the said Act, I refer the accused to the Mental Health Review Tribunal; 3. Under s 14(b)(iii) of the said Act, I remand the accused in custody until the determination of the Tribunal has been given effect to and until further order of the court. 4. Direct the Registrar to provide the following documents to the Tribunal: 1. A copy of my reasons for judgment; 2. A copy of the reports of Drs Chew and O'Dea; 3. A copy of the Crown Case Statement; 4. A copy of the written submissions of counsel. 1. Under s 7 Court Orders Suppression and Non-Publication Act 2010 (NSW), the publication of these reasons is restricted in the interests of the administration of justice to the legal representatives of the parties, and the Mental Health Review Tribunal until completion of procedures under Mental Health (Forensic Provisions Act) 1990 (NSW) or, if applicable, jury verdict. ********** Amendments 08 November 2018 - Non Publication order lifted as the matter is now finalised DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2018