CORNER BROOK, NL — DiAfter hearing from a forensic psychiatrist, Justice George Murphy must now decide whether a man charged with committing sexual offenses against two teenage boys in the 1980s is fit to stand trial.
Herbert Penney-Flynn, 76, and now living in Ontario was charged in 2018 with sexual assault; indecent assault on a male; buggery; gross indecency; administering, or causing to be administered, a noxious thing; and administering, or causing to be administered, a stupefying or overpowering drug. The incidents are alleged to have occurred on separate occasions in 1982 and 1988 while Flynn was living in Corner Brook.
Both his alleged victims are now in their 50s and five of the charges are in relation to one of them.
Penney-Flynn was not present in the Supreme Court of Newfoundland and Labrador in Corner Brook for his fitness hearing on Wednesday, June 22. He was represented by Shelley Senior, who arranged for Dr. Hy Bloom to assess his fitness.
Bloom tested via videoconference from Ontario to his findings during the hearing and answered questions related to it from Senior and Crown attorney Trina Simms. Simms also appeared remotely via videoconference.
Dealing with the fitness hearing has caused delays in starting Penney-Flynn’s trial.
He had originally been scheduled to go on trial in January 2020 but that was changed to April 2020 after the judge assigned to the case resigned. Then the matter was delayed because of the COVID-19 pandemic.
In April 2021 new trial dates were set for December 2021 and Senior informed the court she was trying to arrange a private assessment of her client.
It was noted then that Penney-Flynn had been diagnosed with early onset Alzheimer’s in 2013. Senior said at the time the medical information she had was quite dated and that it was important for him to be tested close to his trial date.
The matter was called a few more times in fall 2021 and on Dec. 6, 2021, on what was supposed to be the start of his trial, Penney-Flynn’s fitness hearing was set for March 17. It was later postponed to June 22.
At the completion of the hearing, Murphy said he intended to prepare a written decision and set the matter over to Sept. 6.
He said he may file his decision before then and the purpose of the Sept. 6 appearance would be to determine what happens next.
If Murphy decides Penney-Flynn is fit to stand trial, then a trial date would have to be set.
If he decides Penney-Flynn is not fit to strand trial the matter would be passed on to the Criminal Code Mental Disorder Review Board.
The Justice and Public Safety section of the provincial government website says the board is responsible for reviewing and issuing provisions related to the management of people accused of committing a crime who have been found unfit to stand trial, or not criminally responsible by reason of a mental disorders.
For those found not fit to stand trial the board may impose a conditional discharge or hospital detention. Individuals are reviewed annually, or more frequently at the discretion of the board or at the request of the person, the Crown or the defence.
If they are later found fit to stand trial, then the board must order that the individual be returned to court for their matter to be dealt with.