Citation: R v Reilly [2022] NSWDC 764
Court: District Court of New South Wales
Date: 4 November 2022
Judge: Sutherland SC DCJ
Background
The accused, a 92-year-old former Marist Brother, faced an indictment alleging he had sexually abused a number of young boys while acting as Boarding Master at a boys' home in Westmead between approximately 1978 and 1980. The charges included acts of indecency, buggery, and common assault against multiple complainants, who were children at the relevant time. Statutory prohibitions under the Children (Criminal Proceedings) Act 1987 and the Crimes Act 1900 prevented publication of the complainants' names, and pseudonyms were used throughout the judgment.
The accused had been suffering from progressive cognitive and physical decline for some years. Although he was assessed as fit to plead and stand trial as recently as September 2021, subsequent psychiatric reassessments concluded that he was no longer fit for trial. The defence psychiatrist found him unfit, and the Crown psychiatrist concluded it was likely the court would make the same finding.
Before the fitness question could be formally determined, an outstanding application for a permanent stay of proceedings came before the court. The delay in finalising that application, combined with the accused's continuing deterioration, required careful consideration of how the two issues interacted.
Legal Issues
- Whether the court retained jurisdiction to determine a permanent stay application where a question of unfitness to be tried had already been raised, or whether the fitness inquiry under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) took mandatory precedence.
- Whether the circumstances of the case, taken collectively, amounted to an abuse of process justifying a permanent stay of proceedings.
- What weight should be given to the availability of a special hearing procedure under the mental health legislation as an alternative to an outright stay.
Decision
Jurisdiction to determine the stay application first
Both parties submitted, and the court accepted, that jurisdiction existed to resolve the stay application before proceeding to a mandatory fitness inquiry. Drawing on R v WRC [2003] NSWCCA 394, in which Spigelman CJ held that there is a strong presumption against the legislature intending to abrogate a court's inherent jurisdiction to control abuse of process, Sutherland SC DCJ concluded that the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 did not displace that jurisdiction. The relevant provisions of the new Act were found to be substantively identical to those of its predecessor, so the reasoning in WRC applied equally.
Whether a permanent stay was warranted
The court identified a combination of factors weighing in favour of a stay. These included the loss of likely relevant documents, the deaths of identified witnesses, patent weaknesses in aspects of the prosecution case, the accused's serious physical ailments, and his manifestly deteriorated cognitive state. Taken together, those factors were assessed as making it "out of accord with common humanity" for the proceedings to continue.
The role of the special hearing procedure
The court acknowledged the serious nature of the allegations and the public interest in the special hearing procedure operating as Parliament intended. However, Sutherland SC DCJ distinguished the present case from WRC, where the Court of Criminal Appeal had found no evidence of an "overwhelming reason" to bypass the special hearing mechanism. Here, the combined weight of the identified factors constituted precisely such an overwhelming reason, so that continuing the proceedings to a special hearing would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
Orders Made
- The proceedings against the accused were permanently stayed.
Key Takeaways
- The District Court confirmed it retains inherent jurisdiction to determine a permanent stay application even after a question of unfitness to be tried has been raised, and is not automatically required to resolve the fitness question first.
- Under R v WRC, the special hearing procedure provided by NSW mental health legislation should ordinarily be allowed to operate unless there is an "overwhelming reason" to the contrary; the present decision found that threshold was met on the particular facts.
- A permanent stay is an extreme remedy reserved for the most exceptional cases; no single factor is necessarily determinative, and the combined force of multiple prejudicial factors must be assessed together.
- Absence of a personal affidavit from the accused deposing to memory loss was not fatal to the stay application where detailed psychiatric evidence and carer observations provided equivalent material.
- Where an accused is found likely unfit for trial, the public interest in proceedings continuing through a special hearing is characterised as diminished compared with an ordinary trial, a consideration drawn from Victorian Court of Appeal authority and applied in this context.
Legislation and Cases Referenced
Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 42
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 7, 9, 10
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Crimes Act 1900 (NSW), s 578A
Cases
- R v WRC [2003] NSWCCA 394; 59 NSWLR 273 (leading authority on jurisdiction and the interplay between permanent stay and mental health legislation)
- Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
- Walton v Gardiner [1993] HCA 77; 177 CLR 378
- Jago v District Court of NSW [1989] HCA 46; 168 CLR 23
- Barton v The Queen [1980] HCA 48; 147 CLR 75
- R v Littler [2001] NSWCCA 173; 120 A Crim R 152
- TS v R [2014] NSWCCA 174
- Bauer (a pseudonym) v The Queen [2015] VSCA 55
- McDonald (a pseudonym) v The Queen [2016] VSCA 304
- Morton (a pseudonym) v The Queen [2020] VSCA 49
- Pound v The Queen [2019] VSCA 279
- McGee v The Queen [2020] VSCA 146
- Arrivoli v R [2017] NSWDC 112
- DPP for NSW v Hakim (1989) 41 A Crim R 372