Supreme Court New South Wales Medium Neutral Citation: R v McKellar (No 2) [2014] NSWSC 105 Hearing dates: 17 - 18 February 2014 Decision date: 18 February 2014 Jurisdiction: Common Law - Criminal Before: Button J Decision: The special hearing of the accused may continue in his absence. Catchwords: CRIMINAL LAW - murder - special hearing - accused voluntarily absented himself from the special hearing - whether the special hearing could continue in his absence Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Pt 2, ss 21(2), 21A Cases Cited: McHardie and Danielson (1983) 2 NSWLR 733 R v Berry (1897) 104 LT 110 R v Cornwell (1972) 2 NSWLR 1 R v Mary Browne (1906) 70 JP 472 R v Lee Kun [1916] 1 KB 337 Williams v R [2012] NSWCCA 286 Texts Cited: James Fitzjames Stephen, A Digest of the Law of Criminal Procedure in Indictable Offences (1883, Macmillan) Category: Procedural and other rulings Parties: Regina Shane Thomas McKellar Representation: Counsel: Mr W Creasey SC (Crown) Ms C Davenport SC (Defendant) Solicitors: Mr M Maher - Office of the Director of Public Prosecutions (Crown) Mr B Mallinson - Blair Criminal Lawyers Pty Limited (Defendant) File Number(s): 2011/180041 2011/167627 Judgment 1The special hearing of the allegation that the accused murdered the deceased and committed two other offences commenced yesterday morning. The accused was present almost continuously until 2 PM, and seemed to be able to control himself and to be free from outward signs of distress. Due allowance was made by me for his mental, emotional, and intellectual condition (to which I shall refer in more detail in a moment), and I expressed myself to be open to a number of logistical proposals directed towards ensuring his ability to remain present. 2After the luncheon adjournment, senior counsel for the accused informed me that he had instructed her that he was distressed by the Crown's opening; that he did not wish to be in court; that he is hearing voices and that being in court exacerbates that phenomenon; that regrettably in Bathurst Gaol he is held in his cell for 24 hours a day; and that he requests that I recommend that he be returned to a forensic unit in Sydney. In short, the application was that the special hearing continue in the voluntary absence of the accused. That application was not opposed by the learned Crown Prosecutor. 3The background is that the accused is alleged to have committed a murder three months short of three years ago. He was arrested and charged promptly. The matter has been very much delayed by, in short, questions about the mental condition of the accused. 4A large number of psychological and psychiatric reports were helpfully tendered by both parties with regard to the application. They stretch back to 2007, when the question of the fitness of the accused to stand trial was raised with regard to another matter. The most recent report is of the Mental Health Review Tribunal of 10 September 2013, confirming the opinion that the accused would not become fit to stand trial within 12 months of a determination of unfitness made by this Court on 5 July 2013. 5There is no need for me to review all of the information contained in those reports in detail. It is enough to state that, although there has been a soundly based concern that the accused is malingering or exaggerating with regard to at least one of his conditions in the past, nevertheless I accept that the accused is a paranoid schizophrenic who suffers from auditory hallucinations (in other words, he hears voices); has ideas of reference (in other words, he believes that the television set is addressing him personally); and possesses persecutory beliefs (such as that efforts are being made by officers of the Department of Corrective Services to poison him). Indeed, he first complained of auditory hallucinations well over 15 years ago. 6He also possesses an intellectual impairment described as mild, although it is well known that that term is something of a misnomer. It is clear that the accused cannot read or write. 7He also suffers from depression and has engaged in suicidal ideation and made suicidal gestures in the past. 8Finally, he has in the past been agitated and distressed when in court or even discussing the allegations with medical professionals, although it must be said that he was well behaved yesterday. 9The accused is being medicated for his conditions to the extent possible, including with anti-psychotic medication. 10In short, on all of the evidence that was placed before me with regard to the application, I accept that the accused is mentally ill and intellectually disabled, and it is in that context that the application is made. Again, the Crown has not suggested otherwise with regard to that finding of fact. 11Turning to legal principle, since time immemorial the general rule has been that an accused person must be present throughout his or her criminal trial on indictment with regard to an allegation of, at the least, felony: see R v Lee Kun [1916] 1 KB 337 at 341; James Fitzjames Stephen, A Digest of the Law of Criminal Procedure in Indictable Offences (1883, Macmillan) at 194. Apart from anything else, the plea of guilty or not guilty must come from the mouth of the accused and not his or her counsel. As well as that, the right to challenge with regard to the jury is vested in the accused personally. 12However, there are well established exceptions to that principle. One is if the accused voluntarily absents himself or herself from the trial: R v McHardie and Danielson (1983) 2 NSWLR 733 (escaping from prison); Williams v R [2012] NSWCCA 286 (absconding on bail midway through trial). Another is, as one would expect, if the accused by his or her conduct makes it impossible for the trial to continue: R v Berry (1897) 104 LT 110; R v Mary Browne (1906) 70 JP 472; R v Cornwell (1972) 2 NSWLR 1. 13Here, of course, the accused is not on trial. Rather, due to his unfitness to do so, he is facing a special hearing. Although such a procedure is analogous to a trial, it is by no means identical. There are some marked differences created by Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), not least of which is that the default procedure is by way of judge alone as opposed to trial by jury: see s 21A. 14Senior counsel for the accused made a number of separate submissions in support of the application. 15First, a special hearing proceeds on the assumption that an accused is unfit, so that it is very likely that his or her role in the proceedings will always be markedly reduced. 16Secondly, s 21(2) of the Act specifically emphasises the requirement of representation subject to court order to the contrary, thereby again focusing on the protection of the interests of the accused by way of a lawyer rather than by his or her own involvement. I interpolate to say that there is no suggestion that the accused seeks to attempt to dispense with the services of senior counsel, who is widely known as possessing great expertise in the criminal law. 17Thirdly, many of the decided cases turn on the question of prejudice to an accused in that a jury could well draw an adverse inference from the absence of the accused from the courtroom, especially midway through a criminal trial. That does not, of course, apply in this case. 18Fourthly, senior counsel for the accused submitted that it would be absurd to force, as it were, this man to disrupt proceedings or even to attempt to escape in order to enliven the discretion to proceed in his absence. 19I respectfully consider that all of those submissions are soundly based. Yet again, the Crown has not contended to the contrary. 20I took time to consider the application, not only to read all of the evidence, but also to reflect on it generally. It is no small thing to be absent with regard to proceedings alleging a murder, whether they be a criminal trial or a special hearing. I also reflected on the fact that the accused is mentally ill and intellectually disabled, and his choice to seek to be absent may be affected by those conditions. 21I have also been given pause by the fact that there is no more up-to-date psychiatric or psychological report available than one from five months ago. 22On balance, however, in light of: firstly, the mental and intellectual condition of the accused; secondly, the fact that he will remain represented by senior counsel; thirdly, the fact that this is a special hearing and not a trial; fourthly, the fact that there will be no prejudice to the accused arising from his absence; and, fifthly, the fact that the Crown Prosecutor explicitly in the circumstances of this case consents to the application, I consider that I should exercise my discretion to permit the accused to be absent from his special hearing, which will proceed forthwith. 23As for the recommendation, I am respectfully disinclined to make it. I know little of the logistical and medical issues relating to the accused and his treatment and placement in the prison system, geographical or otherwise. 24It is for those reasons that I make the following order: (1)The special hearing of the accused may continue in his absence. ********** 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: 26 February 2014