NSW Caselaw
New South Wales District Court
CITATION: R v McGuire [2009] NSWDC 245
HEARING DATE(S): 31 August - 3 September 2009
JUDGMENT DATE: 4 September 2009
JURISDICTION: Crime
JUDGMENT OF: Murrell SC DCJ
CATCHWORDS: CRIMINAL LAW - special hearing before judge alone - developmentally delayed accused - sexual intercourse without consent and break and enter to commit serious indictable offence charges - sexual intercourse by partial penetration - abuse of process - double jeopardy - stay of proceedings
LEGISLATION CITED: Crimes Act 1990 ss 61I and 112(2) Mental Health (Forensic Provisions) Act 1990 ss 16(1), 21(3)(a) and 22.
Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30 CASES CITED: Pearce v The Queen [1998] HCA 57 Regina v Lang [2008] NSWCCA 41
PARTIES: Regina Herbert Robert MCGUIRE
FILE NUMBER(S): 2007/00006370
COUNSEL: M Fernandez for the Crown T Evers for the Accused
SOLICITORS: NSW Director of Public Prosecutions Mark Douglass Criminal Law
1 On 27 November 2008, the Mental Health Review Tribunal made a determination under section 16 (1) of the Mental Health (Forensic Provisions) Act 1990 (the Act) that the accused was unfit to be tried. The accused suffers from an intellectual disability. He has a full-scale IQ of 67, which places him in the bottom 1% of the population. He has a limited attention span, his verbal skills are particularly weak and he cannot grasp complex concepts.
2 On 4 February 2009, the Director of Public Prosecutions determined to take further proceedings. A special hearing was convened and proceeded before me sitting as a judge alone.
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