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McDonald v R

McDonald v R

Case [2016] VSCA 304 8 December 2016

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0172
DAVE McDONALD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	REDLICH and FERGUSON JJA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 October 2016
DATE ORDERS MADE:	25 October 2016
DATE OF JUDGMENT:	8 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 304
JUDGMENT APPEALED FROM:	DPP v [McDonald] (Unreported, County Court of Victoria, Judge Saccardo, 19 August 2016) (Ruling)

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CRIMINAL LAW – Interlocutory appeal from refusal to permanently stay indictment and special hearing – Applicant suffering from advanced dementia – Applicant found unfit to be tried by jury – Finding that applicant would remain unfit to be tried for at least next 12 months, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 11(4) – Alleged offending occurred between 1982 and 1984 – Power to grant stay of special hearing based on mental infirmity, Subramaniam v The Queen (2004) 211 ALR 1, discussed – R v Littler (2001) 120 A Crim R 512, considered – Lengthy delay, loss of evidence and witnesses, and degree of cognitive impairment considered – No procedural measures appropriate – Diminished public interest in proceeding – Proceeding would involve incurable, oppressive and unacceptable unfairness – Abuse of process – Appeal allowed – Permanent stay of indictment ordered – Barton v The Queen (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; Walton v Gardiner (1993) 177 CLR 378 – R v ALP [2002] VSCA 210; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; R v FJL (2014) 41 VR 572, discussed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Marsh with Ms R Sleeth	Victorian Legal Aid
For the Respondent	Ms K E Judd QC with Mr A Buckland	Mr J Cain, Solicitor for Public Prosecutions

REDLICH JA

BEALE AJA

Background of application

The applicant, having been found unfit to be tried by a jury, was facing an imminent ‘special hearing’ under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘the Act’). He applied to the trial judge for a permanent stay of the indictment. The application was refused.[2] The applicant then sought leave to appeal against the interlocutory judgment refusing that stay. Following the hearing of the application, we granted him leave to appeal, allowed the appeal and permanently stayed the indictment. These are our reasons for those orders on 25 October 2016.
[2]DPP v [McDonald] (Unreported, County Court of Victoria, Judge Saccardo, 19 August 2016) (‘Ruling’).

The appeal is concerned with whether the trial judge, first, failed to give any or adequate weight to the applicant’s cognitive impairment and, secondly, failed to consider the combined effect of that…

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 McDonald v R

Details

AGLC: and Dave McDonald (a pseudonym)[1] v The Queen [2016] VSCA 304
Case: [2016] VSCA 304
Decision Date: 8 December 2016

CaseChat Overview and Summary

The applicant in this case, McDonald, appealed against the refusal of the Court of Appeal to permanently stay the indictment and special hearing against him. McDonald, who suffers from advanced dementia, was found unfit to be tried by a jury. The determination was made that McDonald would remain unfit to be tried for at least the next 12 months, as per section 11(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The alleged offences occurred between 1982 and 1984. The court examined the power to grant a stay of a special hearing due to mental infirmity, referencing Subramaniam v The Queen and R v Littler.

The central legal issue was whether the court had the authority to grant a permanent stay of the indictment and special hearing under the circumstances. The court considered the lengthy delay, loss of evidence and witnesses, and the degree of McDonald’s cognitive impairment. It was determined that no procedural measures were appropriate, and the public interest in proceeding had diminished. The court concluded that proceeding with the trial would involve incurable, oppressive, and unacceptable unfairness, amounting to an abuse of process. The appeal was allowed, and a permanent stay of the indictment was ordered, based on precedents such as Barton v The Queen, Jago v District Court of New South Wales, R v Glennon, and Walton v Gardiner. Additional cases like R v ALP, Hermanus (a pseudonym) v The Queen, and R v FJL were also discussed.

The court’s reasoning focused on the impracticality and injustice of continuing the trial given McDonald's condition and the significant passage of time since the alleged offences. The appeal was thus successful, and the court ordered a permanent stay of the indictment. This decision underscored the importance of considering fairness and the practicalities of proceeding with a trial against a severely mentally impaired individual. The final orders reflected the court’s conclusion that continuing with the trial would not be just or in the interests of justice.

Orders