R v O’Neill [2023] NSWDC 122

District Court New South Wales

Medium Neutral Citation: R v O'Neill [2023] NSWDC 122 Hearing dates: 30 March 2023 Date of orders: 30 March 2023 Decision date: 30 March 2023 Jurisdiction: Criminal Before: Grant DCJ Decision: The accused is unfit to be tried. Catchwords: Unfitness – fitness test – inquiry – Mental Health and Cognitive Impairment Forensic Provisions Act – Criminal Procedure Legislation Cited: Crimes Act 1900 Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 Mental Health (Forensic Provisions) Act 1990 Cases Cited: R v Presser [1958] VR 45 Kesavarajah v The Queen (1994) 181 CLR 230 Category: Procedural rulings Parties: Regina (Crown) O'Neill (Accused) Representation: Counsel: Mr Kerr (DPP) Mr Buchen SC

Solicitors: Ms Dawson (DPP) Mr Faraj Mr Istifan File Number(s): 2020/00332557

JUDGMENT

BACKGROUND 1. Mr O'Neill is 88 years of age. On 4 March 2022 he was arraigned on a 12‑count indictment and pleaded not guilty. The allegations are historical and are said to have occurred between February 1976 and July 1976. There are seven counts of indecent assault contrary to s 81 of the Crimes Act and five counts of buggery contrary to s 79 of the Crimes Act. The alleged offences occurred at various locations including Lavington, Lake Hume and Coonabarabran. 2. The complainant was 17 years of age on 26 November 1975, when he joined the Australian Army and completed his 13 weeks of recruit training before being allocated to the Ordnance Corps. The complainant made a complaint in 2012 about the accused to the Defence Abuse Response Team. The complainant alleged that the accused committed offences against him while they both served in the Army in Victoria, New South Wales and Queensland. 3. On 24 February 2016, the accused was charged with offences against the complainant in Queensland. In about mid-1976. The accused was convicted after trial of five counts of carnal knowledge. He was sentenced to three years' imprisonment which was suspended after nine months. The accused was released from custody in about November 2019. 4. Police in New South Wales did not serve the accused with charges until 21 November 2020. The accused resides in Queensland. He is largely wheelchair-bound and relies on the assistance of his son for most day-to-day living activities. He suffers from numerous serious health conditions, including Parkinson's disease, chronic infection relating to part hip surgery, post‑traumatic stress disorder, sleep apnoea, depression and anxiety. He also suffers from progressive cognitive decline. The accused has suffered several fractures in recent years, including as recently as May 2022, at which time he was hospitalised. His prognosis is poor. He has a very limited life expectancy. 5. The accused's trial was listed to commence at the Albury District Court on 17 October 2022. An application to stay the proceedings was before me on 30 September 2022. Mr Buchen SC appeared on behalf of the accused. Essentially, the grounds that were argued were that to permit the trial to continue would be out of accord with common humanity. The proceedings would be unfairly and unjustifiably oppressive and the trial would be unfair. 6. During the course of the application I heard evidence from Dr David Williams, a neurologist. He was not cross‑examined. I also heard evidence from Dr Furst, a psychiatrist. He was not cross‑examined. Mr Buchen provided written submissions and spoke orally on the motion. A large number of medical reports were tendered on behalf of the accused. At the completion of Mr Buchen's submissions, the Crown sought an adjournment to seek a report from an expert. Dr Furst had provided a supplementary report dated 27 September 2022 indicating that the accused was unfit to stand trial. I vacated the trial date and adjourned the stay application to enable the Crown to seek an expert opinion. 7. Dr Furst, in his supplementary report, was of the opinion that the accused was unfit and was not going to be fit for the next 12 months. The matter was adjourned to 9 December 2022 for mention. Further adjournments have occurred to enable the Crown to obtain a report from Professor Greenberg, forensic psychiatrist. The report was obtained on 1 March 2023. 8. The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The Act replaced the Mental Health (Forensic Provisions) Act 1990 and commenced on 27 March 2021. The Court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable; s 42. The inquiry procedures are set out in s 44 and include the following: 1. the determination by judge alone: s 44(1). 2. the defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44(2). 3. the inquiry is not to be conducted in an adversarial manner: s 44(3). 4. onus of proof does not rest on any particular party: s 44(4). 5. the Court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial, the length and complexity of the trial and representation of the defendant: s 44(5). 6. a determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 44(6). 1. Mr O'Neill is represented by an Australian legal practitioner. Section 36 now creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230. 2. Section 36(1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment, they cannot do one or more of the following: 1. understand the offence the subject of the proceedings, 2. plead to the charge, 3. exercise the right to challenge jurors, 4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, 5. follow the course of the proceedings so as to understand, 6. understand the substantial effect of any evidence given against the person, 7. make a defence or answer to the charge, 8. understand the substantial effect of any evidence given against the person, 9. make a defence or answer to the charge, 10. instruct the person's legal representatives so as to mount a defence and provide the person's version of the facts to that legal representative and to the Court if necessary, 11. decide whether the defence that person will rely on and make that decision known to the person's legal representative and the Court. 1. The list is not exhaustive and does not limit the grounds on which a Court may consider a person to be unfit to be tried for an offence: s 36(2).