Application to stay proceedings – physical and mental condition of the defendant – defendant lacking the ability to participate effectively in a trial – defendant unable to participate effectively in a trial – lack of availability of defence witnesses – immunity from prosecution – Mental Health Act 1969, s 124
R v Corkran [2023] NZHC 1602 per Isac J.
Public concern about the mistreatment of adult and adolescent patients at Lake Alice Hospital started surfacing in the 1970s. Between 1976 and 2022, there were several investigations and reports by state and international agencies, including the ongoing Royal Commission of Inquiry into Historical Abuse in State Care.
John Richard James Corkran was a psychiatric charge nurse at Lake Alice. Between 1974 and 1997, Corkran allegedly injected seven children with the sedative paraldehyde as a form of punishment. The injections would cause significant pain for hours and rendered the relevant limb temporarily unusable. As a result, Corkran was charged with eight counts of cruelty to children.
A five-day trial was originally scheduled on four pre-trial matters: whether a determination should be given that prosecution is barred by s 124 of the Mental Health Act 1969, whether a stay of the proceeding should be given, whether Corkran is fit to stand trial and whether a discharge under s 147 of the Criminal Procedure Act 2011 should be granted.
Corkran’s physical and mental condition was assessed by various medical professionals. He was found to be terminally ill with stage four prostate cancer and experiencing pain, fatigue and cognitive impairment. His GP stated he was not medically fit to attend a court hearing and psychiatrists confirmed his mental impairment, expressing concerns about his ability to participate in a trial lasting up to eight weeks.
After determining Corkran’s physical and mental condition, defence counsel and prosecution invited Isac J on the second day of the hearing to rule on an application for a stay.
Corkran’s deteriorating mental and physical condition, along with the complexity of the trial, meant Isac J decided the defendant could not provide consistent and reliable testimony.
It was unlikely that accommodations would alleviate his impairments, and the nearly 50-year delay since the alleged events occurred had resulted in the loss of potential defence witnesses.
Isac J concluded Corkran could not receive a fair trial, and the prosecution should be permanently stayed to prevent further injustice.
Because the stay was granted, it was unnecessary to determine whether he was unfit to stand trial.
The court expressed tentative views on whether Corkran might be entitled to immunity from prosecution under s 124 of the Mental Health Act 1969, which granted immunity to psychiatric institution workers, except in cases of bad faith or negligence.
The judge ultimately decided that if he had rejected Corkran’s application to stay, the proceeding should have nonetheless been stayed on the condition an inquiry into the availability of the s 124 immunity was completed.
Applicable principles: right to a fair trial – abuse of process – delay and prejudice – prejudice and fairness – public interest – defence’s effective participation – fitness to stand trial
Held: As a result of Corkran’s physical and mental capacity, lack of available defence witnesses and the defendant’s overall ability to receive a fair trial, charges against him were permanently stayed.
Jamie Dierick is a law clerk working for an Auckland criminal defence barrister.
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