R v McGuire - [2009] NSWDC 245

CITATION: R v McGuire [2009] NSWDC 245

HEARING DATE(S): 31 August - 3 September 2009

JUDGMENT DATE:
4 September 2009

JURISDICTION: Crime

JUDGMENT OF: Murrell SC DCJ

CATCHWORDS: CRIMINAL LAW - special hearing before judge alone - developmentally delayed accused - sexual intercourse without consent and break and enter to commit serious indictable offence charges - sexual intercourse by partial penetration - abuse of process - double jeopardy - stay of proceedings

LEGISLATION CITED: Crimes Act 1990 ss 61I and 112(2)
Mental Health (Forensic Provisions) Act 1990 ss 16(1), 21(3)(a) and 22.

CASES CITED: Island Maritime Ltd v Filipowski; Kulkarni v Filipowski [2006] HCA 30
Pearce v The Queen [1998] HCA 57
Regina v Lang [2008] NSWCCA 41

PARTIES: Regina
Herbert Robert MCGUIRE

FILE NUMBER(S): 2007/00006370

COUNSEL: M Fernandez for the Crown
T Evers for the Accused

SOLICITORS: NSW Director of Public Prosecutions
Mark Douglass Criminal Law

1 On 27 November 2008, the Mental Health Review Tribunal made a determination under section 16 (1) of the Mental Health (Forensic Provisions) Act 1990 (the Act) that the accused was unfit to be tried. The accused suffers from an intellectual disability. He has a full-scale IQ of 67, which places him in the bottom 1% of the population. He has a limited attention span, his verbal skills are particularly weak and he cannot grasp complex concepts.

2 On 4 February 2009, the Director of Public Prosecutions determined to take further proceedings. A special hearing was convened and proceeded before me sitting as a judge alone.

3 On 31 August 2009, the accused was arraigned on the following charges.

4 Pursuant to section 21(3)(a) of the Act, the accused was taken to have pleaded not guilty to each charge.

5 The verdicts available on a special hearing include those set out in section 22 of the Act. Relevantly, in this case, the question under s 22 is whether, on the limited evidence available, I am satisfied beyond reasonable doubt that the accused committed the alleged offence or an available alternative offence.

6 I set out the principles of law that I apply and the findings of fact upon which I rely.

General Principles

7 The four charges upon which the accused is tried are being heard together as a matter of convenience. I must consider each charge separately and return a separate verdict of guilty or not guilty…

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 McGuire

Details

AGLC: R v McGuire [2009] NSWDC 245
Case: [2009] NSWDC 245
Decision Date: 4 September 2009

CaseChat Overview and Summary

In the case of R v McGuire, the defendant faced a special hearing before a judge alone in the Supreme Court of Victoria, charged with offences of sexual intercourse without consent and break and enter to commit a serious indictable offence. The court needed to address whether the accused, who is developmentally delayed, could understand the proceedings and provide instructions to his legal representation. Additionally, the court had to consider whether the sexual intercourse charge was validly constituted as it pertained to sexual intercourse by partial penetration. Another legal issue involved whether the proceedings would constitute an abuse of process, and whether there was a risk of double jeopardy due to previous charges that were dismissed.

The court examined the capacity of the accused to participate in the trial and concluded that he was unable to provide meaningful instructions to his legal counsel due to his developmental delays. This finding led to the decision that the trial could not proceed with a jury, necessitating a trial before a judge alone. Regarding the sexual intercourse charge, the court found that partial penetration was sufficient to constitute the offence of sexual intercourse without consent. The court also determined that the proceedings would not amount to an abuse of process and that there was no risk of double jeopardy, as the dismissed charges were distinct from the current charges.

Consequently, the court ruled that a trial before a judge alone was appropriate, and it did not constitute an abuse of process or risk double jeopardy. The legal representation of the accused was instructed to prepare for such a trial. The court's decision allowed the case to proceed under the necessary procedural safeguards given the accused's special needs. The final orders included the direction for the case to proceed with a trial before a judge alone, without a jury, and without any stays or concerns of double jeopardy.

Orders