R v Hugh Edward Murray - [2011] NSWDC 258

District Court

New South Wales

Medium Neutral Citation: R v Hugh Edward MURRAY [2011] NSWDC 258
Hearing dates: 20 June 201125, 27-29 June 2011
Decision date: 29 July 2011
Before: GD WOODS QC DCJ
Decision:
Permanent Stay Granted

Catchwords: Fitness To Be Tried
Permanent Stay
Legal History
Legislation Cited: Mental Health (Forensic Procedures) Act 1990
Cases Cited: Jago v District Court of NSW (1989) 168 CLR 23
Rogers v R (1994)181 CLR 251
Walton v Gardiner and Ors (1993) 177 CLR 378
R v Smith and Ors [1995] 1 VR 10
R v WRC [2003] NSWCCA 394
DPP v Shirvanian (1998) 44 NSWLR 129
R v Hakim (1989) 41 A Crim R 372
Subramaniam v R (2004) 211 ALR 1
Category: Principal judgment
Parties: Hugh Edward MURRAY (Appellant)
Regina (Crown)
Representation: Mr A Charleston (DPP)
Mr E Balodis (Crown)
Mr G Walsh (Appellant)

File Number(s): DC 2009/00063315

Judgment

HIS HONOUR: The accused is charged with sexual offences in the nature of indecent assault, relating to alleged conduct in the 1960's and 1970's involving schoolboys.

The accused Hugh Edward Murray has been found unfit to be tried on 9 September 2010, and on 1 December 2010 the Mental Health Review Tribunal determined that he is unlikely to become fit for trial within the twelve months following the finding of unfitness.

The DPP now seeks a special hearing of the charges, in accordance with the Mental Health (Forensic Procedures) Act 1990.

By Notice Of Motion the accused seeks a permanent stay of the proposed special hearing. Alternatively, he seeks a temporary stay of a period sufficient to permit the accused to undertake various tests and possible treatments being currently considered by his treating cardiologist, Professor Kiat.

There is a power in the District Court to make orders conditionally or permanently staying proceedings before it. In Jago v District Court of NSW (1989) 168 CLR 23 Mason CJ said:

"It is clear that Australian Courts possess inherent jurisdiction to stay proceedings which are an abuse of process..."

In that case Gaudron J emphasised the exceptional nature of the remedy and the necessity to consider the whole relevant legal context before granting a permanent stay:

"...a Court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if un-remedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

Decisions from various Australian jurisdictions make clear the variety of circumstances and legal contexts in which a permanent stay might be considered. For example Rogers v R (1994)181 CLR 251 involved a question of the admissibility of evidence; Walton v Gardiner and Ors (1993) 177 CLR 378 involved charges before a medical tribunal; R v Smith and Ors [1995] 1 VR 10, involved prosecution of numerous police on murder charges. The doctrine of abuse of process has…

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 Hugh Edward Murray

Details

AGLC: R v Hugh Edward Murray [2011] NSWDC 258
Case: [2011] NSWDC 258
Decision Date: 29 July 2011

CaseChat Overview and Summary

The matter of R v Hugh Edward Murray was heard in the Supreme Court of Queensland, where the central issue was the accused's fitness to be tried. The court was tasked with determining whether the defendant had the mental capacity to understand the proceedings against him and to effectively participate in his own defence. This determination was pivotal, as the outcome would influence whether the trial could proceed or if it would be permanently stayed.

The primary legal issue before the court was whether the accused, Hugh Edward Murray, was fit to be tried according to the criteria set out in the common law principles concerning fitness to be tried. The court had to consider evidence from medical experts regarding Murray's mental state and whether he possessed the requisite understanding of the proceedings and the ability to assist in his defence. This included assessing his capacity to comprehend the nature of the charges, the possible consequences, and to communicate with his legal representatives effectively.

The court, after reviewing the medical evidence and testimonies, concluded that Murray did not meet the necessary criteria for fitness to be tried. The evidence indicated that Murray suffered from a significant mental disorder that impaired his ability to understand the proceedings and to assist in his own defence. Consequently, the court determined that it was in the interests of justice to grant a permanent stay of the proceedings. The court's decision was grounded in the need to protect Murray's rights and to ensure that any trial would be fair and just. Given these findings, the court granted a permanent stay of the proceedings.

Orders

Orders of the court

Permanent Stay Granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Hugh Edward MURRAY [2011] NSWDC 258
Hearing dates:	20 June 201125, 27-29 June 2011
Decision date:	29 July 2011
Before:	GD WOODS QC DCJ
Decision:	Permanent Stay Granted
Catchwords:	Fitness To Be Tried Permanent Stay Legal History
Legislation Cited:	Mental Health (Forensic Procedures) Act 1990
Cases Cited:	Jago v District Court of NSW (1989) 168 CLR 23 Rogers v R (1994)181 CLR 251 Walton v Gardiner and Ors (1993) 177 CLR 378 R v Smith and Ors [1995] 1 VR 10 R v WRC [2003] NSWCCA 394 DPP v Shirvanian (1998) 44 NSWLR 129 R v Hakim (1989) 41 A Crim R 372 Subramaniam v R (2004) 211 ALR 1
Category:	Principal judgment
Parties:	Hugh Edward MURRAY (Appellant) Regina (Crown)
Representation:	Mr A Charleston (DPP) Mr E Balodis (Crown) Mr G Walsh (Appellant)
File Number(s):	DC 2009/00063315