R v Poynton

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.
3. 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.
4. 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.
5. 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.
6. 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