R v McKellar (No 2) - [2014] NSWSC 105

Supreme Court

New South Wales

Medium Neutral Citation: R v McKellar (No 2) [2014] NSWSC 105
Hearing dates: 17 - 18 February 2014
Decision date: 18 February 2014
Jurisdiction: Common Law - Criminal
Before: Button J
Decision:
The special hearing of the accused may continue in his absence.

Catchwords: CRIMINAL LAW - murder - special hearing - accused voluntarily absented himself from the special hearing - whether the special hearing could continue in his absence
Legislation Cited: Mental Health (Forensic Provisions) Act 1990 (NSW) Pt 2, ss 21(2), 21A
Cases Cited: McHardie and Danielson (1983) 2 NSWLR 733
R v Berry (1897) 104 LT 110
R v Cornwell (1972) 2 NSWLR 1
R v Mary Browne (1906) 70 JP 472
R v Lee Kun [1916] 1 KB 337
Williams v R [2012] NSWCCA 286
Texts Cited: James Fitzjames Stephen, A Digest of the Law of Criminal Procedure in Indictable Offences (1883, Macmillan)
Category: Procedural and other rulings
Parties: Regina
Shane Thomas McKellar
Representation: Counsel:
Mr W Creasey SC (Crown)
Ms C Davenport SC (Defendant)
Solicitors:
Mr M Maher - Office of the Director of Public Prosecutions (Crown)
Mr B Mallinson - Blair Criminal Lawyers Pty Limited (Defendant)

File Number(s): 2011/180041 2011/167627

Judgment

The special hearing of the allegation that the accused murdered the deceased and committed two other offences commenced yesterday morning. The accused was present almost continuously until 2 PM, and seemed to be able to control himself and to be free from outward signs of distress. Due allowance was made by me for his mental, emotional, and intellectual condition (to which I shall refer in more detail in a moment), and I expressed myself to be open to a number of logistical proposals directed towards ensuring his ability to remain present.

After the luncheon adjournment, senior counsel for the accused informed me that he had instructed her that he was distressed by the Crown's opening; that he did not wish to be in court; that he is hearing voices and that being in court exacerbates that phenomenon; that regrettably in Bathurst Gaol he is held in his cell for 24 hours a day; and that he requests that I recommend that he be returned to a forensic unit in Sydney. In short, the application was that the special hearing continue in the voluntary absence of the accused. That application was not opposed by the learned Crown Prosecutor.

The background is that the accused is alleged to have committed a murder three months short of three years ago. He was arrested and charged promptly. The matter has been very much delayed by, in short, questions about the mental condition of the accused.

A large number of psychological and psychiatric reports were helpfully tendered by both parties with regard to the application. They stretch back to 2007, when the question of the fitness of the accused to stand trial was raised with regard to another matter. The most recent report is of the Mental Health Review Tribunal of 10 September…

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 McKellar (No 2)

Details

AGLC: R v McKellar (No 2) [2014] NSWSC 105
Case: [2014] NSWSC 105
Decision Date: 18 February 2014

CaseChat Overview and Summary

The case of R v McKellar (No 2) involved the accused, McKellar, who faced a special hearing concerning a charge of murder. The hearing was conducted in the Supreme Court of Victoria. McKellar voluntarily absented himself from the special hearing, which raised the question of whether the hearing could proceed in his absence.

The legal issue before the court was whether the special hearing could continue without the presence of the accused. This involved determining whether the court's power to conduct such a hearing was dependent on the physical presence of the accused. The court needed to balance the rights of the accused to be present with the interests of justice and the need to efficiently manage court resources.

The court held that the special hearing could proceed in the absence of the accused. It was determined that the statutory provisions allowed for a hearing to continue even if the accused did not attend. The court reasoned that the absence of the accused did not impede the fairness of the proceedings, as the primary function of a special hearing is to determine issues of law and fact that do not require the direct participation of the accused. The court emphasised that the rights of the accused could be adequately protected through legal representation and that the proceedings could still be fair and just in the accused's absence.

The final orders of the court were that the special hearing could proceed without the accused's presence, and that any findings or decisions made during the hearing would be valid and binding. The court also noted that McKellar's absence did not prevent the hearing from being conducted in a manner that was fair and just, and that the accused's rights were protected through legal representation.

Orders