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District Court 4 September 2009

R v McGuire

[2009] NSWDC 245

Sexual offences
CRIMINAL LAW SPECIAL HEARING BEFORE JUDGE ALONE DEVELOPMENTALLY DELAYED ACCUSED ABUSE OF PROCESS DOUBLE JEOPARDY STAY OF PROCEEDINGS

Citation: R v McGuire [2009] NSWDC 245
Court: District Court of New South Wales
Date: 4 September 2009
Judge(s): Murrell SC DCJ

Background

The accused was found unfit to stand trial due to an intellectual disability. He had a full-scale IQ of 67, placing him in the bottom one per cent of the population, with limited verbal skills and an inability to grasp complex concepts. The Mental Health Review Tribunal made its unfitness determination in November 2008, and the Director of Public Prosecutions subsequently elected to take further proceedings.

A special hearing was convened before a judge alone. The accused faced four charges arising from events on 4 April 2006 in Nowra: three counts of sexual intercourse without consent (penile/vaginal intercourse on two occasions and penile/anal intercourse) and one count of breaking and entering a dwelling house knowing a person was present, with the break-and-enter charge premised on the commission of the first sexual assault.

Under the Mental Health (Forensic Provisions) Act 1990, the accused was taken to have pleaded not guilty to each charge. The court was required to determine whether, on the limited evidence available, it was satisfied beyond reasonable doubt that the accused committed each alleged offence.

  • Whether the Crown proved, beyond reasonable doubt, each element of the three sexual intercourse without consent charges
  • Whether the complainant was a credible and reliable witness, given that the Crown case on each charge rested substantially on her evidence
  • Whether proceeding to verdict on the break-and-enter charge (count 4) after a verdict on the first sexual assault charge (count 1) would constitute an abuse of process, given that all elements of count 1 were wholly included within count 4
  • Whether, in a special hearing context, the court retained inherent jurisdiction to stay proceedings as an abuse of process

Decision

The court carefully scrutinised the complainant's evidence against all other evidence before accepting it. Her account was internally consistent and supported by medical evidence, including bruising, anal tearing, and genital inflammation found on examination, as well as evidence of early complaints to police and distress observed by witnesses. The court found her honesty and reliability to be beyond reproach.

On counts 1, 2, and 3, the court was satisfied beyond reasonable doubt on the limited evidence available that the accused committed each of the three offences of sexual intercourse without consent. The accused did not give evidence, and no adverse inference was drawn from that election, with the court noting that his intellectual disability would in any event provide ample explanation.

On count 4 (break and enter), a double jeopardy issue arose. All elements of count 1 were wholly included within count 4, meaning a verdict on count 4 would amount to a second adverse finding against the accused for the same conduct. The Crown did not seek to amend the indictment to address this, and in fact conceded that count 1 ought to be determined first.

Applying the principle in Pearce v The Queen and the Court of Criminal Appeal's decision in Regina v Lang, the court concluded that a verdict on count 4 in those circumstances would be an abuse of process. The court held that, even in a special hearing, it retains its inherent jurisdiction to stay proceedings on that basis, and count 4 was accordingly stayed.

Orders Made

  • On counts 1, 2, and 3: the court found that the accused committed the offences charged (verdicts of guilty on the limited evidence available under s 22 of the Mental Health (Forensic Provisions) Act 1990)
  • Count 4 (break and enter): stayed as an abuse of process

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 is conducted as nearly as possible to a criminal trial, and the standard criminal burden of proof (beyond reasonable doubt) applies to each element of each charge.
  • The District Court confirmed that it retains inherent jurisdiction to stay proceedings as an abuse of process during a special hearing, notwithstanding the particular statutory framework governing such hearings.
  • Where all elements of one charge are wholly included within another charge on the same indictment, proceeding to verdict on both charges in respect of the same conduct can constitute an abuse of process on double jeopardy grounds, consistent with the High Court's reasoning in Pearce v The Queen.
  • Under the relevant provisions, penetration to any extent (even partial) satisfies the element of sexual intercourse for the purposes of the sexual assault charges.
  • An accused's election to remain silent at a special hearing draws no adverse inference; where the accused has an intellectual disability, that disability provides additional context for that election.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 61I and 112(2)
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 16(1), 21(3)(a) and 22

Cases:
- Pearce v The Queen [1998] HCA 57
- Regina v Lang [2008] NSWCCA 41
- Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30