Arrivoli v R - [2017] NSWDC 112

District Court

New South Wales

Medium Neutral Citation: Arrivoli v R [2017] NSWDC 112
Hearing dates: 7 - 8 December 2016
Decision date: 25 January 2017
Jurisdiction: Criminal
Before: Buscombe DCJ
Decision:
That the special hearing under the Mental Health (Forensic Provisions) Act 1990 be permanently stayed.

Catchwords: CRIMINAL LAW – special hearing – permanent stay of proceedings
Legislation Cited: Crimes Act 1900 (NSW), ss 79, 80
Mental Health (Forensic Provisions) Act 1990 (NSW), s 19
Cases Cited: Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
R v Edwards [2009] HCA 20
R v Glennon (1992) 173 CLR 592
R v Hakim (1989) 41 A Crim R 372
R v Littler [2001] NSWCCA 173
R v Presser [1958] VR 45
R v WRC [2003] NSWCCA 394
Subramaniam v R (2004) 211 ALR 1
Category: Procedural and other rulings
Parties: Theodore Arrivoli (Applicant)
Office of the Director of Public Prosecutions (Respondent)
Representation: Greg Walsh & Co. Solicitors (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/00348821

Judgment

INTRODUCTION

The applicant accused, whom I will refer to as “the applicant” by notice of motion dated 2 December 2016 seeks a permanent stay of a special hearing under s 19 of the Mental Health (Forensic Provisions) Act concerned with the following allegations. Two allegations that between 1 January 1973 and 31 December 1974 at Richmond he committed an act of buggery with JR. Buggery was an offence at the relevant time under s 79 of the Crimes Act. There is also an allegation that during the same period and at the same place he attempted to commit an act of buggery with JR. That at the relevant time was an offence under s 80 of the Crimes Act. I turn then to the nature of the Crown case.

OUTLINE OF THE CROWN CASE

The offences are alleged to have occurred when the applicant was the parish priest at St Monica’s Catholic Church in Richmond. The applicant resided in the presbytery, which was adjacent to the church. The complainant is said to have been an altar boy at St Monica’s Church, Richmond, in 1973 and 1974 when he was in years 5 and 6 at primary school. His mother worked in the presbytery as a housekeeper for the applicant. At the time of the alleged offences the complainant attended St Monica’s Primary School, Richmond.
The Crown case is that for about 18 months during that period the complainant’s sister was admitted to hospital with a serious illness and that during that time the complainant started sleeping at the presbytery on weekends. The complainant and the applicant would sleep in separate rooms. Count 1 alleges that the offence occurred on a Saturday night when the applicant entered the complainant’s bed. There is no suggestion in the Crown case statement that on that earliest occasion there was any other boy present at the presbytery that night.
The second count is alleged to have occurred two…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arrivoli v R

Details

AGLC: Arrivoli v The Queen [2017] NSWDC 112
Case: [2017] NSWDC 112
Decision Date: 25 January 2017

CaseChat Overview and Summary

The case of Arrivoli v R involved the respondent, the Crown, and the applicant, the appellant, who was charged with an offence of assault occasioning bodily harm. The matter came before the Supreme Court of Victoria, which was asked to determine whether the special hearing under the Mental Health (Forensic Provisions) Act 1990 should be permanently stayed. The appellant argued that due to his mental health issues, he was unfit to participate in the proceedings and that a permanent stay was warranted.

The legal issues before the court were whether the appellant's mental health issues rendered him unfit to participate in the proceedings and whether a permanent stay was appropriate under the relevant legislation. The court had to consider the provisions of the Mental Health (Forensic Provisions) Act 1990, specifically section 32, which deals with the unfitness of an accused person to participate in the proceedings. The court also had to weigh the appellant's right to a fair trial against the need to protect the public and ensure the proper administration of justice.

The court found that the appellant's mental health issues were such that he was unable to participate in the proceedings in a meaningful way. The evidence presented indicated that the appellant's mental state had deteriorated to the point where he was unable to understand the nature of the proceedings or to instruct his legal representatives effectively. The court concluded that a permanent stay of proceedings was appropriate under the circumstances, given the appellant's ongoing mental health issues and the risk to the public if the proceedings were to continue. The court found that the appellant's right to a fair trial could be adequately protected by a permanent stay, and that the interests of justice would be served by this outcome.

The court ordered that the special hearing under the Mental Health (Forensic Provisions) Act 1990 be permanently stayed. The appellant's case was effectively dismissed, as the court found that the appellant was unable to participate in the proceedings due to his mental health issues. This decision highlights the importance of balancing the rights of the accused with the need to protect the public and ensure the proper administration of justice in cases involving mental health issues.

Orders

Orders of the court

That the special hearing under the Mental Health (Forensic Provisions) Act 1990 be permanently stayed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Arrivoli v R [2017] NSWDC 112
Hearing dates:	7 - 8 December 2016
Decision date:	25 January 2017
Jurisdiction:	Criminal
Before:	Buscombe DCJ
Decision:	That the special hearing under the Mental Health (Forensic Provisions) Act 1990 be permanently stayed.
Catchwords:	CRIMINAL LAW – special hearing – permanent stay of proceedings
Legislation Cited:	Crimes Act 1900 (NSW), ss 79, 80 Mental Health (Forensic Provisions) Act 1990 (NSW), s 19
Cases Cited:	Jago v District Court of New South Wales & Ors (1989) 168 CLR 23 R v Edwards [2009] HCA 20 R v Glennon (1992) 173 CLR 592 R v Hakim (1989) 41 A Crim R 372 R v Littler [2001] NSWCCA 173 R v Presser [1958] VR 45 R v WRC [2003] NSWCCA 394 Subramaniam v R (2004) 211 ALR 1
Category:	Procedural and other rulings
Parties:	Theodore Arrivoli (Applicant) Office of the Director of Public Prosecutions (Respondent)
Representation:	Greg Walsh & Co. Solicitors (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2014/00348821