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Supreme Court 18 February 2014

R v McKellar (No 2)

[2014] NSWSC 105

Homicide
CRIMINAL LAW MURDER SPECIAL HEARING

Citation: R v McKellar (No 2) [2014] NSWSC 105
Court: Supreme Court of New South Wales
Date: 18 February 2014
Judge(s): Button J

Background

The accused faced a special hearing before Button J on an allegation of murder and two other offences. A special hearing is a procedure under the Mental Health (Forensic Provisions) Act 1990 (NSW) for accused persons who have been found unfit to stand trial. The accused had been found unfit to stand trial in July 2013, with a subsequent determination that he would not become fit within the following 12 months.

The accused attended on the first day of the special hearing but, following the luncheon adjournment, his senior counsel informed the court that he was distressed by the Crown's opening, was experiencing auditory hallucinations exacerbated by being in court, and did not wish to remain present. Senior counsel applied for the special hearing to continue in his voluntary absence. The Crown did not oppose the application.

The accused had a documented psychiatric history. Button J accepted on the evidence that he suffered from paranoid schizophrenia (with auditory hallucinations, ideas of reference, and persecutory beliefs), a mild intellectual impairment, depression, and a history of suicidal ideation. He had first complained of auditory hallucinations more than 15 years earlier and was being medicated with anti-psychotic medication.

  • Whether the general rule requiring an accused to be present throughout a criminal trial on indictment applies equally to a special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW).
  • Whether the court had a discretion to allow a special hearing to proceed in the voluntary absence of an accused, and if so, whether that discretion should be exercised in the circumstances.

Decision

Button J began with the established general rule that an accused must be present throughout a criminal trial on indictment for at least a felony, as confirmed in R v Lee Kun [1916] 1 KB 337. That rule has well-recognised exceptions, including where an accused voluntarily absents himself (as in escape from custody or absconding on bail) and where the accused's own conduct makes continuation of the trial impossible.

His Honour noted that a special hearing is not a trial. While the procedure is analogous to a trial, Part 2 of the Mental Health (Forensic Provisions) Act 1990 creates significant differences, including that the default procedure is judge alone rather than jury trial. Several features distinguished this application from the ordinary trial context: the proceedings proceeded on the assumption of unfitness, meaning the accused's active personal participation was already markedly reduced; section 21(2) of the Act emphasises the importance of legal representation rather than the accused's own involvement; and there was no risk that a judge alone would draw any adverse inference from the accused's absence.

Button J accepted the four submissions advanced by senior counsel for the accused, finding them all soundly based. He acknowledged the gravity of proceeding in the absence of an accused facing an allegation of murder, and also that the accused's decision to seek absence may itself have been affected by his mental illness and intellectual disability. Nonetheless, on balance, Button J exercised the discretion to permit the special hearing to continue in the accused's absence, having regard to the accused's mental and intellectual condition, the continuation of senior counsel's representation, the nature of the proceedings as a special hearing, the absence of any prejudice to the accused, and the Crown's explicit consent.

His Honour declined to make a recommendation for the accused's transfer to a forensic unit in Sydney, finding he lacked sufficient knowledge of the relevant logistical and medical considerations.

Orders Made

  • The special hearing of the accused may continue in his absence.

Key Takeaways

  • A special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) is analogous to, but not identical to, a criminal trial, and the ordinary common law rules governing an accused's presence do not apply without modification.
  • The Supreme Court held that a court conducting a special hearing has a discretion to permit proceedings to continue in the voluntary absence of an accused, distinct from the discretion exercised in conventional criminal trials.
  • Under the Mental Health (Forensic Provisions) Act 1990, the emphasis placed by section 21(2) on legal representation, rather than the accused's personal participation, is a relevant factor when considering absence applications.
  • Where a special hearing proceeds by judge alone, the concern that an absent accused's jury might draw adverse inferences does not arise, removing one of the principal objections to continuing in absence.
  • Relevant factors in exercising the discretion included the accused's mental illness and intellectual disability, the continuation of experienced legal representation, the nature of the special hearing procedure, the absence of prejudice, and the Crown's consent.

Legislation and Cases Referenced

Legislation:
- Mental Health (Forensic Provisions) Act 1990 (NSW), Part 2, ss 21(2), 21A

Cases:
- R v Lee Kun [1916] 1 KB 337
- R v McHardie and Danielson (1983) 2 NSWLR 733
- Williams v R [2012] NSWCCA 286
- R v Berry (1897) 104 LT 110
- R v Mary Browne (1906) 70 JP 472
- R v Cornwell (1972) 2 NSWLR 1