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District Court 30 March 2023

R v O’Neill

[2023] NSWDC 122

Sexual offences
UNFITNESS FITNESS TEST INQUIRY CRIMINAL PROCEDURE

Citation: R v O'Neill [2023] NSWDC 122
Court: District Court of New South Wales
Date: 30 March 2023
Judge: Grant DCJ

Background

The accused, an 88-year-old man, faced a 12-count indictment comprising seven counts of indecent assault and five counts of buggery, all alleged to have occurred between February and July 1976 during his service in the Australian Army. The complainant had first raised the allegations through the Defence Abuse Response Team in 2012. The accused had previously been convicted in Queensland of related offences and was released from custody in approximately November 2019.

The accused resided in Queensland and was largely wheelchair-bound, relying on his son for most daily activities. He suffered from a range of serious conditions including Parkinson's disease, post-traumatic stress disorder, depression, anxiety, chronic infection following hip surgery, and progressive cognitive decline. His prognosis was poor, with a very limited life expectancy.

When the trial was listed to commence at the Albury District Court in October 2022, a stay application was brought on the grounds that proceeding would be oppressive and contrary to common humanity. During that application, psychiatric evidence emerged that the accused was unfit to stand trial. The trial date was vacated and the matter was adjourned to allow both parties to obtain expert reports, leading to the fitness inquiry determined in this judgment.

  • Whether the accused was unfit to stand trial within the meaning of s 36 of the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020
  • Whether, if found unfit, the accused was likely to become fit within 12 months
  • What procedural steps were to follow upon a finding of unfitness

Decision

Grant DCJ conducted the inquiry under s 44 of the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 ("the Act"), which replaced the former Mental Health (Forensic Provisions) Act 1990. The inquiry was determined by the judge alone, without an adversarial process, and with no onus of proof resting on either party. The statutory fitness test in s 36 of the Act codifies the principles established in R v Presser and confirmed in Kesavarajah v The Queen, requiring the court to assess whether a defendant's mental health or cognitive impairment prevents them from understanding the proceedings, following the evidence, instructing their lawyers, or making and communicating decisions about their defence.

Two independent expert reports were before the court. Dr Furst, a forensic psychiatrist, revised his original opinion and concluded the accused was unfit. He identified difficulties with memory, attention, information processing, and word-finding, and expressed serious concern that the accused's presentation would be misinterpreted by a jury as dishonesty rather than impairment. Dr Furst also flagged a substantially elevated suicide risk if a trial were to proceed, and concluded the accused was permanently unfit.

Professor Greenberg, a forensic psychiatrist retained by the Crown, reached the same conclusion. He diagnosed the accused with mild neurocognitive disorder, chronic adjustment disorder with depressed and anxious mood, and PTSD in partial remission. Professor Greenberg found that even with modifications or special assistance to facilitate participation, the accused was unlikely to attain the fitness threshold in the near future, and specifically unlikely to become fit within the next 12 months.

Accepting both expert opinions, Grant DCJ was satisfied on the balance of probabilities that the accused was unfit to stand trial and would remain so for at least 12 months. Under s 48(1) of the Act, the matter was therefore referred to the Division 3 special hearing process.

Orders Made

  • The accused was found unfit to stand trial on the balance of probabilities.
  • The court was satisfied the accused would not become fit within 12 months.
  • The matter was referred to Division 3 of the Act for a special hearing.
  • Pursuant to s 53(2) of the Act, the Director of Public Prosecutions was to be asked whether further proceedings would be taken.
  • The proceedings were adjourned to 27 April 2023 to allow receipt of the Director's advice.
  • The accused was not required to appear if legally represented.

Key Takeaways

  • The District Court applied the statutory fitness test under s 36 of the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020, which now provides an explicit legislative codification of the Presser principles previously applied at common law.
  • A finding of unfitness does not require that every criterion in s 36(1) be made out; the list is non-exhaustive and the court may consider any grounds indicating a defendant cannot meaningfully participate in their trial.
  • Where two independent psychiatric experts agreed that an accused's cognitive and psychiatric impairments were progressive and fundamental, the court accepted permanent unfitness on the balance of probabilities without adversarial challenge.
  • Under s 48(1) of the Act, a finding of unfitness combined with an assessment that fitness will not be attained within 12 months triggers the special hearing process under Division 3, rather than an indefinite adjournment or discharge.
  • Fitness inquiries under the Act are non-adversarial, with no onus on either party, and the court must consider whether modifications or special assistance could bridge any gap before concluding a defendant cannot reach the fitness threshold.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 (NSW), ss 36, 42, 44, 48, 53
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
- Crimes Act 1900 (NSW), ss 79, 81

Cases
- R v Presser [1958] VR 45
- Kesavarajah v The Queen (1994) 181 CLR 230