R v O'Neill

[2023] NSWDC 122

District Court

New South Wales

Medium Neutral Citation:

R v O’Neill [2023] NSWDC 122

Hearing dates:

30 March 2023

Date of orders:

30 March 2023

Decision date:

30 March 2023

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The accused is unfit to be tried.

Catchwords:

Unfitness – fitness test – inquiry – Mental Health and Cognitive Impairment Forensic Provisions Act – Criminal Procedure

Legislation Cited:

Crimes Act 1900

Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020

Mental Health (Forensic Provisions) Act 1990

Cases Cited:

R v Presser [1958] VR 45

Kesavarajah v The Queen (1994) 181 CLR 230

Category:

Procedural rulings

Parties:

Regina (Crown)
O’Neill (Accused)

Representation:

Counsel:
Mr Kerr (DPP)
Mr Buchen SC

Solicitors:
Ms Dawson (DPP)
Mr Faraj
Mr Istifan

File Number(s):

2020/00332557

JUDGMENT

BACKGROUND

1. Mr O’Neill is 88 years of age. On 4 March 2022 he was arraigned on a 12‑count indictment and pleaded not guilty. The allegations are historical and are said to have occurred between February 1976 and July 1976. There are seven counts of indecent assault contrary to s 81 of the Crimes Act and five counts of buggery contrary to s 79 of the Crimes Act. The alleged offences occurred at various locations including Lavington, Lake Hume and Coonabarabran.

2. The complainant was 17 years of age on 26 November 1975, when he joined the Australian Army and completed his 13 weeks of recruit training before being allocated to the Ordnance Corps. The complainant made a complaint in 2012 about the accused to the Defence Abuse Response Team. The complainant alleged that the accused committed offences against him while they both served in the Army in Victoria, New South Wales and Queensland.

3. On 24 February 2016, the accused was charged with offences against the complainant in Queensland. In about mid-1976. The accused was convicted after trial of five counts of carnal knowledge. He was sentenced to three years’ imprisonment which was suspended after nine months. The accused was released from custody in about November 2019.

4. Police in New South Wales did not serve the accused with charges until 21 November 2020. The accused resides in Queensland. He is largely wheelchair-bound and relies on the assistance of his son for most day-to-day living activities. He suffers from numerous serious health conditions, including Parkinson’s disease, chronic infection relating to part hip surgery, post‑traumatic stress disorder, sleep apnoea, depression and anxiety. He also suffers from progressive cognitive decline. The accused has suffered several fractures in recent years, including as recently as May 2022, at which time he was hospitalised. His prognosis is poor. He has a very limited life expectancy.

5. The accused’s trial was listed to commence at the Albury District Court on 17 October 2022. An application to stay the proceedings was before me on 30 September 2022. Mr Buchen SC appeared on behalf of the accused. Essentially, the grounds that were argued were that to permit the trial to continue would be out of accord with common humanity. The proceedings would be unfairly and…