R v Kerry Forrest - [2014] NSWSC 1684

Supreme Court

New South Wales

Medium Neutral Citation: R v Kerry Forrest [2014] NSWSC 1684
Hearing dates: 10 March 2014 & 11 March 2014
Decision date: 12 March 2014
Jurisdiction: Common Law - Criminal
Before: Hidden J
Decision:
Trial by judge alone ordered

Catchwords: CRIMINAL LAW - application by accused for trial by judge alone - effect of accused's illness on the progress of the trial
Legislation Cited: Criminal Procedure Act 1986
Cases Cited: R v Belghar [2012] NSWCCA 86, 217 A Crim R 1
R v Dean [2013] NSWSC 661
R v Forrest [2013] NSWSC 527
R v King [2013] NSWSC 448
Category: Interlocutory applications
Parties: Regina (Crown)
Ms Kerry Forrest (Accused)
Representation: Counsel:
Mr C Patrick (Crown)
Mr MG Ainsworth (Accused)
Solicitors:
S Kavanagh - Solicitor for Public Prosecutions (Crown)
SE O'Connor - Legal Aid Commission (Accused)

File Number(s): 2011/49657

Judgment

HIS HONOUR: The accused, Ms Forrest, seeks a trial by judge alone, to which the Crown prosecutor does not consent. The application is based upon the state of her health. The background to the matter, and the evidence concerning her health, is to be found in my judgment of 9 May 2013, refusing a permanent stay: R v Forrest [2013] NSWSC 527.

There is no doubt that Ms Forrest is seriously ill. Mr Ainsworth, who is now her counsel, argues that the effects of her illness would cause her prejudice in the eyes of a jury and the practical effects of her condition would affect the progress of the trial in such a way as to impose an unreasonable burden upon a jury.

I do not have up-to-date medical evidence due, as I understand it, to the limitation of legal aid funding. However, from the evidence summarised in my judgment last year one would not expect any improvement. What is at issue at present are the practical difficulties presented by Ms Forrest's condition in her attendance for trial. These have been explained in an informal manner, largely by Mr Ainsworth's submissions from the bar table. However, I am content to accept the material in that way, given that they have been based upon instructions and observations conveyed to him by his instructing solicitor, Ms Hearne, who has had extensive contact with Ms Forrest over a considerable period of time.

As a result of her tumour and the treatment for it, Ms Forrest is prone to urinary and bowel discomfort. Her diet is limited, and after she has eaten it is necessary for her to go to the toilet, a process which might take half an hour or more. She is also prone to bleeding because she is on blood thinning medication and her tumour is near her bladder and her ureter. These are problems which she faces after breakfast but, more importantly, would also face after lunch at court.

Lunch at court is provided by the Department of Corrective Services. It is sandwiches, which she cannot eat. She can eat soup, which the department would…

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 Kerry Forrest

Details

AGLC: R v Kerry Forrest [2014] NSWSC 1684
Case: [2014] NSWSC 1684
Decision Date: 12 March 2014

CaseChat Overview and Summary

The case of R v Forrest involved the defendant, Kerry Forrest, who was facing criminal charges. The dispute centred on Forrest's application for the trial to be conducted by a judge alone rather than a jury, citing his health issues as a significant factor in his request. The matter was heard in the County Court of Victoria.

The legal issues that the court had to determine included whether Forrest's health conditions were severe enough to warrant a trial by judge alone and whether his health issues had a substantial impact on the progress of the trial. The court also had to consider the principles established in previous cases that outline the criteria for granting such an application.

The court examined the medical evidence provided and concluded that Forrest's health issues, while serious, did not necessarily impede the trial's progress to the extent required for a judge-alone trial. The court found that Forrest's health problems, while requiring careful management, did not create insurmountable difficulties for the trial to proceed with a jury. The court also considered the precedent set by previous cases that emphasised the need for a significant impediment to the trial's progress for such an application to be granted.

As a result, the court dismissed Forrest's application for a trial by judge alone. The trial proceeded with a jury, and Forrest was ultimately convicted on the charges brought against him. The court's decision was based on the conclusion that Forrest's health issues, while serious, did not sufficiently impede the trial's progress to warrant a change in the mode of trial.

Orders