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Supreme Court 9 May 2013

R v FORREST, Kerry

[2013] NSWSC 527

HomicideFraud & dishonesty
CRIMINAL LAW SERIOUS ILLNESS OF ACCUSED POOR PROGNOSIS EFFECT OF ILLNESS ON HER MENTAL STATE POLICY CONSIDERATIONS WHETHER FAIR TRIAL COULD BE HAD

Citation: R v Forrest, Kerry [2013] NSWSC 527
Court: Supreme Court of New South Wales
Date: 9 May 2013
Judge(s): Hidden J

Background

The accused faced trial for the murder of an 83-year-old man in her care. The Crown alleged she had befriended him, become involved in his finances, and withdrawn more than $300,000 from a joint account without his knowledge, before killing him by administering a lethal dose of morphine to conceal her dishonest dealings. The case was characterised as premeditated murder, with an estimated trial length of eight weeks.

The accused applied for a permanent stay of proceedings on health grounds. She had been diagnosed with stage 3B cervical cancer in late 2012 and was being held at Long Bay Hospital. She also suffered from multiple other conditions, including a venous thrombosis, chronic pelvic and abdominal pain, and mobility impairment requiring a wheelchair.

The application raised the question of whether, given her serious illness and poor prognosis, a fair trial could be conducted and whether proceeding would constitute an abuse of process.

  • Whether the accused's serious illness and prognosis rendered her unfit to stand trial or unable to participate meaningfully in her own defence
  • Whether proceeding to trial in her condition would constitute an abuse of process justifying the exceptional remedy of a permanent stay
  • How to balance the public interest in prosecution of serious criminal offences against the accused's right to a fair trial and her deteriorating health

Decision

Hidden J reviewed detailed medical evidence from two specialists. Associate Professor Michael Jackson, the treating radiation oncologist, and Dr John Schmidt, an obstetrician and gynaecologist engaged by the defence, agreed that the accused had a significantly reduced survival prospect due to her refusal to undergo brachytherapy on two occasions. Dr Schmidt assessed her five-year survival rate at 20% and considered it unlikely she would survive beyond two years. Associate Professor Jackson was less pessimistic, suggesting a 25 to 30% chance of being alive and well at two years, while acknowledging the prognosis was very uncertain.

The defence also raised the accused's capacity to follow the trial and give evidence. Dr Alexander Reznik, a forensic psychiatrist, assessed her as fit to be tried under the Mental Health (Forensic Provisions) Act 1990, and the defence did not ultimately contest that finding. On the question of practical capacity, Hidden J observed the accused directly and found her to be generally attentive and responsive in her answers, despite some lapses in concentration.

Applying the balancing process identified in R v WRC, the court found that the public interest in proceeding with a trial for the most serious of offences strongly outweighed the considerations favouring a stay. His Honour acknowledged the trial would be unusually difficult to conduct and might require reduced sitting hours, frequent breaks, and special transport arrangements. He noted that if difficulties arose in the giving of evidence, expert evidence and appropriate jury directions could address them, and that the possibility of a judge-alone trial might also need to be considered, though that question was not argued before him.

His Honour concluded that the exceptional remedy of a permanent stay was not warranted on the facts. While the accused's condition was serious, a fair trial remained achievable with appropriate management. He noted that, should her condition deteriorate after any conviction, the prerogative of mercy preserved under section 102 of the Crimes (Sentencing Procedure) Act 1999 would remain available, though that issue was not argued before him.

Orders Made

  • The application for a permanent stay of proceedings was refused.

Key Takeaways

  • A permanent stay of criminal proceedings is an exceptional remedy and will not be granted merely because a trial will be unusually difficult to manage due to an accused's serious illness.
  • The balancing test confirmed in R v WRC requires courts to weigh the public interest in prosecuting serious offences against the accused's right to a fair trial; where the charge is murder and the alleged conduct is grave, that public interest carries significant weight.
  • A poor medical prognosis, even a terminal one, does not by itself establish that a fair trial cannot be had, particularly where the accused has demonstrated sufficient capacity to follow proceedings and respond to questioning.
  • Practical accommodations, including reduced sitting hours, expert evidence, appropriate jury directions, and the potential for a judge-alone trial, are relevant factors a court may consider when assessing whether fairness can be achieved despite an accused's ill health.
  • Where an accused is convicted and their health subsequently deteriorates, the prerogative of mercy under section 102 of the Crimes (Sentencing Procedure) Act 1999 remains a mechanism available to address hardship at the sentencing or post-conviction stage.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 102

Cases:
- Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
- R v WRC [2003] NSWCCA 394, 59 NSWLR 273
- Director of Public Prosecutions v Hakim (Lee J, unreported, 16 May 1988)
- Director of Public Prosecutions v Hakim (1989) 41 A Crim R 371 (Court of Appeal)
- R v Littler [2001] NSWCCA 173, 120 A Crim R 512
- Agoston v R [2008] NSWCCA 116