R v Forrest, Kerry - [2013] NSWSC 527

Supreme Court

New South Wales

Medium Neutral Citation: R v FORREST, Kerry [2013] NSWSC 527
Hearing dates: Monday 6 May 2013
Decision date: 09 May 2013
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
Application for permanent stay refused

Catchwords: CRIMINAL LAW - application for permanent stay of trial for murder - serious illness of accused - poor prognosis - effect of illness on her mental state - policy considerations - whether fair trial could be had
Legislation Cited: - Mental Health (Forensic Provisions) Act 1990
- Crimes (Sentencing Procedure) Act 1999
Cases Cited: - Director of Public Prosecutions v Hakim (Lee J, unreported, 16 May 1988)
- Director of Public Prosecutions v Hakim (1989) 41 A Crim R 371 (Court of Appeal)
- Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
- R v Littler [2001] NSWCCA 173, 120 A Crim R 512
- R v WRC [2003] NSWCCA 394, 59 NSWLR 273
- Agoston v R [2008] NSWCCA 116
Category: Interlocutory applications
Parties: Regina (Crown)
Representation: Counsel:
C Patrick (Crown)
S Grant (Accused)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
SE O'Connor - Legal Aid Commission (accused)

File Number(s): 2011/49657

Judgment

HIS HONOUR: Before me is an application by the accused, Kerry Forrest, that her trial for murder be permanently stayed.

Put shortly, it is the Crown case that in September 2009 the accused, then aged about 50, became the carer of the deceased, a gentleman aged 83. It is alleged that she befriended him and became involved in his financial affairs. In early 2010 she and the deceased opened a joint bank account, to which each of them had access. She persuaded the deceased to put his house up for sale, the sale proceeds to be used to build a house on land which she owned. The sale of the house realised a sum in excess of $300,000, which was deposited into the joint account. It is alleged that, without the knowledge of the deceased, she withdrew most of that money and deposited it into an account of her own.

It is the Crown case that the accused wanted the money because she had been gambling heavily. It is alleged that she killed the deceased by administering to him tablets containing a lethal level of morphine. Her motive is said to be her desire to cover up her dishonest dealings with his money. Accordingly, the Crown case is one of premeditated murder. It is a circumstantial case of some complexity, and the trial is estimated to take up to 8 weeks.

The application is based upon the state of the accused's health. On this issue I have in evidence a body of medical material, together with affidavits of the accused and of her solicitor, Ms Emma Hearne. Most importantly, she suffers from cervical cancer stage 3B. She is in custody and is currently held at the Long Bay Hospital. She has received treatment at Prince of…

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 R v Forrest, Kerry

Details

AGLC: R v Forrest, Kerry [2013] NSWSC 527
Case: [2013] NSWSC 527
Decision Date: 09 May 2013

CaseChat Overview and Summary

The case of R v Forrest, Kerry involved a defendant who had been charged with the murder of a man. The accused was terminally ill and had a poor prognosis. Forrest applied for a permanent stay of trial on the basis of her serious illness and the anticipated effects it would have on her mental state, which could potentially impact her ability to participate effectively in the trial. The matter was heard in the Supreme Court of Victoria, which had to determine whether the trial could proceed fairly under the circumstances.

The primary legal issues before the court were whether the accused's serious illness and its expected effects on her mental state were sufficient grounds to permanently stay the trial, and whether any public policy considerations outweighed the need for a fair trial. The court considered the precedent set in previous cases, which established that a trial should not proceed if it is likely to cause an accused to suffer an unfair disadvantage due to their health condition.

The court concluded that the accused's condition and its anticipated impact on her mental state were indeed significant enough to warrant a permanent stay of the trial. The court emphasised the importance of ensuring that a fair trial could be had, taking into account the accused's health and the potential for prejudice. It found that the accused's condition met the threshold for a permanent stay as set out in established case law, and that the public policy considerations did not override the need for a fair trial. The court granted the application for a permanent stay of the trial.

Orders