R v O'Neill (No 2)

[2023] NSWDC 572

District Court

New South Wales

Medium Neutral Citation:

R v O’Neill (No 2) [2023] NSWDC 572

Hearing dates:

30 September 2022
15 September 2023

Date of orders:

30 November 2023

Decision date:

30 November 2023

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The special hearing under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 be permanently stayed.

Catchwords:

CRIME — Permanent Stay — Special Hearing — Out of accord with common humanity

Legislation Cited:

Crimes Act 1900 (NSW)

Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020

Cases Cited:

Arrivoli v R [2017] NSWDC 112

Director of Public Prosecutions v Hakim (unreported NSWSC 16 May 1988)

Gilham v R [2012] NSWCCA 131

Jago v District Court of New South Wales (1989) 168 CLR 23

McIver v R [2019] NSWCCA 214

Mill v The Queen (1988) 166 CLR 59

R v Hakim (1989) 41 A Crim R 372

R v Littler (2001) 120 A Crim R 512

R v Moore (2015) 91 NSWLR 276

R v O'Neill [2023] NSWDC 122

R v RD [2016] NSWCCA 84

R v Todd [1982] 2 NSWLR 517

Subramaniam v The Queen (2004) 79 ALJR 116

TS v R [2014] NSWCCA 174

Walton v Gardiner (1993) 177 CLR 378

Category:

Principal judgment

Parties:

Rex (Crown)
Lawrence O’Neill (Applicant)

Representation:

Counsel:
Mr P Kerr (Crown)
Mr Buchen SC (Applicant)

Solicitors:
Ms Dawson (Crown)

File Number(s):

2020/332557

JUDGMENT

INTRODUCTION

1. Mr O'Neill applies for a permanent stay of a special hearing to be conducted under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020. The power to stay proceedings permanently will only be granted in extreme or exceptional cases. It is an exceptional remedy. A permanent stay is tantamount to a continuing immunity from prosecution. There is a public interest in serious allegations being disposed of on the merits: R v Moore (2015) 91 NSWLR 276 at [24].

2. In evaluating an application for a permanent stay there is a "weighing process involving the subjective of balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges or serious offences and the need to maintain public confidence in the administration of justice": R v RD [2016] NSWCCA 84 at [56].

"The yardstick is not simply fairness to the particular accused, rather it is whether the continuation of the prosecution is consistent with the recognized purpose of criminal justice and so constitutes an abuse of the process of the Court…to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that there is nothing the Court can do to relieve against its unfair consequences": R v RD at [53].

BACKGROUND

3. The applicant is charged with offences of buggery and indecent assault on a male contrary to ss 79 and 81 of The Crimes Act 1900 (NSW) respectively. The offences were allegedly committed against the same complainant, MC, in the first half of 1976. Accordingly, the alleged offences are of great antiquity dating back almost half a century. Both offence provisions were repealed in 1984, almost 30 years ago. They were formally found in a division of the Crimes Act entitled "Unnatural Offences". The charges were not laid until late 2020.

4. The applicant is now 89 years old. He resides in Queensland near Brisbane. 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 past hip surgery, post-traumatic stress disorder, sleep apnoea, depression, and anxiety. He also suffers from progressive cognitive decline. The applicant was born in 1934. He served in the Australian army until about 1980. The complainant was born in 1958. He also served in the Australian army.

5. In 2012 the complainant made a complaint about the applicant to the Defence Abuse Response Team (DART). The complainant alleged that the applicant committed offences against him while they both served in the army in Victoria, New South Wales, and Queensland. Detective Senior Constable Nathan Hogg of the New South Wales Police was tasked to investigate the DART complaints on 26 March 2015. Detective Hogg liaised with police from both Victoria and Queensland. According to Detective Hogg it was agreed Queensland Police would obtain a statement from the complainant who was residing in Queensland at the time.

6. On 21 September 2015 Detective Alexander Gordon-Jones of the Queensland police commenced an investigation of the complainant's allegations. On 27 and 28 September 2015 the complainant made two pretext calls to the applicant. Between 26 September and 7 October 2015, the complainant completed a written statement to Queensland Police alleging sex offences against him by the applicant in Victoria, New South Wales, and Queensland. In a statement dated 22 April 2020 Detective Hogg states that he "reviewed the statement" made by the complainant and thereafter carried out some inquiries regarding the Boomerang Hotel, Lavington (those inquiries were unsuccessful because the records sought no longer existed).

7. The statement Detective Hogg referred to is presumably the statement given to Queensland Police. It was noted however that Detective Hogg states he inquired into the Boomerang Hotel in March 2015 which predates the complainant's Queensland statement. On 24 February 2016 the applicant was charged with the offences against the complainant in Queensland in about mid-1976. The applicant was convicted after trial in February 2019 of five counts of carnal knowledge. He was sentenced to three years imprisonment which was suspended after nine months. The applicant was released from custody in about November 2019. Police in this state did not serve the applicant with the charges until 21 November 2020.

PROCEDURAL BACKGROUND

8. On 21 November 2020 the applicant was served with future court attendance notices for numerous offences of buggery and indecent assault alleged to have been committed upon the complainant in 1976. The charges were certified by the Crown on 11 June 2021. The applicant was represented by Legal Aid on an amicus basis for the first few mentions, however when he failed to complete an application for Legal Aid, Legal Aid withdrew, and an arrest warrant was issued.

9. Mr Ahmad Faraj, Criminal Defence Lawyers Australia, was subsequently instructed and appeared for the applicant at the case conference on 1 December 2021. No offers were made by the applicant and on 1 February 2022 all sequences were committed for trial. The applicant was arraigned at the Griffith District Court (via AVL) on 4 March 2022. A trial date was fixed for 17 October 2022 at the Albury District Court. On 12 September 2022 Mr Faraj on behalf of the applicant filed a notice of motion seeking a permanent stay of proceedings.

10. The hearing took place on 30 September 2022 before Grant DCJ at the Albury District Court. Given the application for a permanent stay clearly raised issues as to the applicant's fitness, and the fact that several of the reports relied upon by the defence counsel had only been served on the Crown two days prior, the Crown sought an adjournment so that it could obtain its own expert report. The application was granted. On 29 November 2023 the Crown formally engaged Professor David Greenberg to assess the applicant on the issues of fitness and to provide a report. There was a delay in the completion of Professor Greenberg's report as the transcript of proceedings from 30 September 2022 was not provided by RSB until 13 February 2023.

11. Professor Greenberg served his expert report on 6 March 2023. He agreed with the opinion of Dr Richard Furst that the applicant is unfit to stand trial and is unlikely to become fit within the next 12 months. On 23 March 2023 the Crown was served with "no bill representations" from Mr Faraj on behalf of the applicant. The Crown subsequently advised the Court that the matter would proceed as a special hearing. On 30 March 2023 the Court found the accused unfit to stand trial, see R v O'Neill [2023] NSWDC 122. On 27 April 2023 the Court noted that there was yet to be a determination in relation to the notice of motion filed by Mr Faraj on 26 September 2022. The matter was listed on 15 September 2023 for further hearing on the application for a permanent stay.

MEDICAL EVIDENCE

(A) Applicant's Physical Health

12. The applicant is now 89 years old. In mid-2021 his wife of almost 40 years passed away. The applicant has resided with his son, Mark O'Neill, since about November 2021. His son provides fulltime care and assistance with the applicant's day-to-day living. The applicant suffers an array of conditions, namely:

1. Parkinson's disease

2. chronic infection and pain associated with a hip reconstruction (which has required multiple operations and necessitates permanent antibiotic and pain medication treatment for the remainder of his life)

3. obstructive sleep apnoea

4. occasional blackouts

5. osteoporosis with multiple fractures

13. The applicant takes various medications including diazepam, Endone and Targin, all of which are sedating to some degree. The applicant has experienced several fractures from falls in recent years. In March of 2022 he fell negotiating a step and suffered fractures to his humerus and femur. This required hospital admission. His mobility is impaired by his age, hip complications, past fractures and osteoporosis, and his Parkinson's disease. As of June 2022 he was largely confined to a wheelchair. He has difficulty transferring in and out of the wheelchair due to weakness, pain, and the sequela of his Parkinson's disease.

14. Dr Isakovic, clinical neuropsychologist and Ms Le Clercq, psychologist, carried out a neuropsychological assessment of the applicant in September 2022. They observed that the applicant had been losing body weight rapidly in recent years. In their assessment he appeared "markedly underweight, fragile and unable to care for himself". His fragile physical and mental health had resulted in a "poor ability to engage socially" and his current support network is limited to his immediate family.

(B) Applicant's Mental Health

15. The applicant has attempted suicide multiple times in the past 12 to 18 months. In the opinion of Dr Furst, forensic psychiatrist, he meets the criteria for a diagnosis of post-traumatic stress disorder and recurrent major depressive disorder. He has experienced long-term depression and anxiety symptoms that are exacerbated by his worries about the current proceedings. Dr Furst also opines that the applicant is likely to become more depressed and anxious as the trial approaches (now special hearing), raising the risk of suicide to levels "much higher" than those experienced on average by a man of his age.

16. Dr Dwyer in January of 2022 opined that the applicant suffers from persistent depression with suicidal thoughts. His thinking was disturbed and his judgment severely impaired. A criminal trial was regarded as likely to worsen the applicant's mental state and to precipitate further suicide attempts. In the opinion of Dr Isakovic and Ms Le Clerck he also meets the DSM-5 criteria for persistent adjustment disorder with mixed anxiety and depressed mood of severe severity and chronic type. As at September 2022 he presented with "extreme hopelessness and risk of self-harm by suicide".

(C) Applicant's Cognitive Function

17. During the June 2022 assessment by Dr David Williams, neurologist, the applicant's presentation and his responses indicated a level of cognitive decline. Dr Williams noted that the applicant's memory and concentration had declined. Dr Isakovic and Ms Le Clercq completed a neuropsychological assessment of the applicant. This included application of the Wechsler

18. Adult Intelligence Scale and assessments of other aspects of his cognitive functioning. The findings made included the following:

1. The applicant has suffered widespread deterioration in his cognitive functioning. He has significant difficulties with complex attention, executive function, learning and memory, perceptual motor and language skills and abilities that are best explained as a result of his acquired disability.

2. With regards to his overall cognitive functioning the applicant's estimated overall intellectual abilities and verbally based attention abilities fell in the extremely low range. His ability to comprehend language and express himself verbally fell in the very low range. These scores were unusually lower than expected (eg results found in less than one per cent of the population).

3. In respect to the applicant's attention and concentration capacity he had significant difficulty controlling his attention and filtering out irrelevant information.

4. In respect of the applicant's learning and memory capacity, although he could recall verbal and visual information immediately after a presentation (average range), he had difficulty recalling this information following a 20 to 30 minute delay (assessed to be in the very low range). He was unable in this context to use cues to "spark" his verbal or visual memory.

5. The applicant's cognitive abilities were identified to be significantly and abnormally lower than his premorbid level of functioning which means that he will experience significant difficulties keeping pace with other men his age on most tasks or participating in critical situations when he might be expected to articulate well or advocate for himself. His marked cognitive decline presented "at the level of disability".

(E) Life Expectancy

19. The medical experts agree that the applicant's life expectancy is very limited. Dr Furst opines that the applicant is likely to live to the age of 90. Dr Williams considers a life expectancy of 90 years to be optimistic in the circumstances.

DR DAVID WILLIAMS (NEUROLOGIST) REPORT DATED 9 JUNE 2022

20. Dr Williams reports the following:

"Mr O'Neill was diagnosed with Parkinson's disease (PD) approximately three to four years ago and has been treated by Dr Adam, neurologist, since mid-2021. Mr O'Neill like many patients with PD, most likely had symptoms for several years before he was initially diagnosed. As expected, his symptoms have progressed over time and he reports right-sided tremor, stiffness, slow movement, and poor balance…

In the context of his falls in diagnosed osteoporosis, Mr O'Neill has suffered multiple fractures the most recent being a compound fracture of the right humerus along with a fractured right femur due to a fall which occurred while he was attempting to negotiate a single step some two to three months ago.

These recent fractures have further limited his mobility as well as his right arm dexterity (due to restricted pronation, supination, and limited flexion). Mr O'Neill had pre-existing mobility constraints due to chronic infection of the right hip. In approximately 2014 Mr O'Neill had a right hip reconstruction following a fracture but this was complicated by an infection which has not been possible to irradicate necessitating long-term antibiotic therapy…

Mr O'Neill has long-standing PTSD secondary to his service in the military. He experiences fluctuating anxiety and depression of severe degree. He attempted suicide (with medications and alcohol) several times following his wife's death although his mood is reported to have improved 'somewhat' since then and he has promised his son Michael, that he will not attempt suicide again. He has been treated with both quetiapine and sertraline to help manage his psychiatric conditions."

21. Under the heading of "Opinion", Dr Williams is of the view:

"Mr O'Neill has multiple medical and psychiatric conditions not all of which in my opinion have been fully diagnosed or treated. As a consequence he has marked physical, emotional, and (perhaps to a somewhat lesser extent) cognitive disabilities. In my opinion this combination of disabilities realistically precludes his safe travel to appear in court in Albury as currently envisaged. I also have serious doubts as to his capacity to participate in court proceedings remotely…

Mr O'Neill has a diagnosis of Parkinson's disease…Mr O'Neill has osteoporosis with multiple fractures most recent of which occurred less than three months ago following a fall while attempting to negotiate a single step…Mr O'Neill has frequent blackouts which do not appear to have been fully investigated or treated. The description of his blackouts suggest they are due to hypotension…Mr O'Neill has cognitive and memory impairment…

In summary, as Mr O'Neill is largely confined to a wheelchair and has great difficulty transferring into and out of his wheelchair due to pain, weakness, and PD, travel from Brisbane to Albury presents not only marked logistical difficulties but a significantly increased risk of further falls with potential fatal consequences. In my opinion such a requirement is unreasonable for anyone but particularly for a man with very limited life expectancy."

DR RICHARD FURST (FORENSIC PSYCHIATRIST) REPORT DATED 27 SEPTEMBER 2022

"Mr O'Neill's psychiatric condition and physical condition have both declined significantly after the death of his wife last year such that the cognitive deficits observed by his wife and noted by Dr Dwyer, together with fitness concerns, are likely to be substantially greater now than they were some 18 months ago lending more weight for the opinions expressed by Dr Dwyer and similar opinions in that respect expressed by Dr Williams after his examination of the accused in May 2022…The most relevant observation of Dr Dwyer and Dr Williams relate to evidence of cognitive impairments 18 months ago and again when he was assessed in May 2022…In light of the extra material reviewed above, I am now of the opinion that it is more likely than not Mr O'Neill has developed a cognitive impairment within the meaning of s 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) as a consequence of his progressive Parkinson's disease and compounded by his psychiatric condition.

Further, I am no longer of the opinion that Mr O'Neill is fit to be tried [as expressed in the last five paragraphs at p 3 of my earlier report]. Mr O'Neill has an understanding of what a criminal trial involves and expresses an intention to plead not guilty, however the essential difficulty is that were Mr O'Neill to participate in a criminal trial either in person or remotely via AV link, his anxiety is likely to increase and this would exacerbate his already evident cognitive impairment and lead to confusion as per the opinion expressed by Dr Dwyer…In my opinion, deficits in Mr O'Neill's attention, concentration, and memory, which are evident in the Mini-Mental State Examination of Dr Williams and were reported by his wife 18 months ago, coupled with severe anxiety and his frail condition, would compromise Mr O'Neill's capacity to defend himself and participate in a trial in fair manner. Further aspects of this opinion outlined in my answer to question 2 below…

His capacity to concentrate on the questions asked of, and answers given by other witnesses in a trial heard over multiple days, is likely to be significantly compromised and is also likely to fluctuate depending on his level of anxiety such that he could easily become confused and inattentive…Mr O'Neill's cognitive impairment likely to be exacerbated by the anxiety of giving evidence in court, would make it difficult for him to attend to questions, provide appropriate responses to questions, and make his version of events known to the Court both in evidence in chief and in cross-examination."

22. Under the heading of "Other Issues" it is the opinion of Dr Furst:

"Mr O’Neill has difficulties with memory, attention, processing the information, and word finding difficulties. His capacity for affective reflection and expression is impaired by his Parkinson's disease and his depression. Put together, his cognitive deficits, psychiatric symptoms and signs, and his diminished range of expression, could easily make Mr O'Neill falter, impairing his capacity for clear and reflective communication and will probably also make him appear hesitant, illogical, and unreliable to a jury, not necessarily based on any factual evidence he gives but based on his appearance, lack of fluency, and communication style. Such cognitive psychiatric and neurological impairment would most likely to be misinterpreted by a lay person sitting on a jury having no knowledge of the accused or his underlying deficit, as a jury essentially needs to work out whether they believe the accused or the complainant in relation to the allegations before the Court. Therefore, there is a high risk of unfair bias towards the accused.

Additionally, there are serious concerns about the capacity of Mr O'Neill to survive a criminal trial in Albury if a trial was to proceed. Based on my assessment and of on Dr Williams and the letters/reports of Dr Dwyer, I am now of the opinion that Mr O'Neill is unfit to be tried and is not physically able to participate in a court hearing either. His risk of suicide would also substantially increase if he was forced to face a trial. I now concur with Dr Dwyer regarding Mr O'Neill to be permanently unfit to be tried."

DR MICHAEL DWYER (CONSULTANT PSYCHIATRIST) REPORT DATED 27 JANUARY 2022

"Mr O'Neill's thinking remains disturbed and his judgment severely impaired. I remain of the opinion that presenting at trial would only serve to worsen Mr O'Neill's mental state with even the prospect of appearing likely to precipitate further suicide attempts. I also remain of the opinion that Mr O'Neill is unlikely to improve enough to be able to present to the Court in the foreseeable future."

JOINT REPORT OF DR MERIMA ISAKOVIC (CLINICAL NEUROPSYCHOLOGIST) AND DIANA LE CLERCQ (PSYCHOLOGIST) DATED 25 SEPTEMBER 2022

"Mr O'Neill's estimated overall intellectual abilities fell in the extremely low range which were significantly and clinically unusually lower that expected (difference found in less than 1% of the population). Mr O'Neill's ability to comprehend language and express himself verbally fell in the very low range which was significantly and unusually lower than expected (difference found in less than 1% of the population). His ability to organise and manipulate visual information fell in the very low range and was significantly and unusually lower than expected (difference found in 1.2% of the population). His verbally based attentional abilities fell within the extremely low range and were significantly and unusually lower than expected (difference found in less than 1% of the population). His ability to work quickly and efficiently with visual information fell within the extremely low range and was significantly and unusually lower than expected (difference found in less than 1% of the population)."

"Mr O'Neill meets the DSM-5 diagnostic criteria for 332.0 (G20) Parkinson's disease 294.11 (F02.81) major neurocognitive disorder most likely due to Parkinson's disease without behavioural disturbance that appeared chronic, progressive, and with the onset likely to precede the time of the initial diagnosis."

"Major neurocognitive disorder: according to the diagnostic and statistical manual of mental disorders (DSM-5) Mr O'Neill's cognitive functioning had declined from premorbid functioning in several cognitive domains (complex attention, executive function, learning and memory, language, and perceptual motor) which is demonstrated above."

"Due to the impact of neurocognitive disorder further escalated by severity of major depression, PTSD, general anxiety, and devastation in adjusting to what he described as lost honour and integrity due to the accusations brought by Mr MC and the subsequent court conviction, Mr O'Neill has suffered widespread deterioration in his cognitive functioning. He has been having significant difficulties with complex attention, executive function, learning and memory, perceptual motor, and language skills and abilities that would best be explained as being a result of his acquired disability. This was evidenced by standardised assessments, clinical observations and collateral information.

All of Mr O'Neill's cognitive abilities are identified to be significantly and abnormally lower than his premorbid level of functioning, which means that he will experience significant difficulties keeping pace with other men his age on most tasks or participating in critical situations when he might be expected to articulate well or advocate for himself.

Mr O'Neill had significant difficulty demonstrating his verbal abstract reasoning skills. He had difficulties perceiving, integrating and organising visual information. Mr O'Neill took longer to complete tasks, required additional time to learn new material, and was unable to quickly complete two tasks simultaneously. Mr O'Neill presented with difficulty keeping verbal information in mind while performing a task and was unable to maintain his attention whilst filtering out irrelevant information. His ability to sequence digits was an area of weakness on his overall cognitive profile.

While Mr O'Neill was able to retrieve verbal and visual information immediately after a presentation, he had significant difficulty recalling this information after 20 to 30 minute delay. Further, Mr O'Neill was unable to use 'cues' to spark his verbal or visual memory."

23. Under the heading of "Recommendations" the report informs me:

"…Given his extremely vulnerable health status, severe loss of weight, inability to manage CPAP machine, inability to walk or stand up independently as well as marked deterioration in cognitive abilities and severe intensity of his depressive state with active suicidal desires and attempts, the life expectancy for Mr O'Neill would likely be below the age of 90 years.

Mr O'Neill presented with extreme hopelessness and risk of self‑harm by suicide. His marked cognitive decline presented at the level of disability and has been affected by health deterioration initiated by the neurocognitive disorder, but further escalated by severity of major depression, PTSD, general anxiety and devastation in adjusting to what he described as lost honour and integrity due to the accusations brought by Mr MC and the subsequent court conviction.

The finding of this through clinical and neuropsychological assessment strongly supported the clinical opinions of Dr David Williams, neurologist, as well as Dr Michael F Dwyer, consultant psychiatrist, that Mr O'Neill has not been capable of adequately representing himself, advocate or defend himself in the court proceedings of any kind where he would be required to comprehend the verbal information, process it reasonably, and provide directions to his legal representatives. In addition, his severe depression and suicidality would likely escalate to the level of undoubtable suicidal execution. The participation to the expected court proceedings in New South Wales would therefore represent the life-threatening risk for Mr O'Neill."

MEDICAL EVIDENCE 30 SEPTEMBER 2022

24. Dr David Williams Transcript 29:

"People with obstructive sleep apnoea suffer from daytime sleepiness so attending to information, new information, during the day is going to be impaired as a result of that sleepiness…We have different types of memory. Immediate memory is the memory that you use when you need to remember a telephone number long enough to dial it. Short‑term memory is when somebody tells you something in the morning and you need to recall it in the afternoon. Longer‑term memory requires the dreaming sleep in order to be established, so if you don't get that dreaming sleep, the new information that you might have been able to retain for a period of a day is much less likely to be retained the second or third or fourth day after that…I tend to think of attention as being at the top of a pyramid of cognitive functioning. It is the most important and it is the most easily disrupted so most of us will have had the experience of having a viral infection and finding very quickly that we weren't able to attend to new information. The attention component means that - sorry, if you have attention impaired it means that you're much less likely to be able to convert immediate memory to short‑term memory as a result of that dysfunction of attention."

25. Transcript 30:

"Pain is an emotion. Mr O'Neill suffers from a number of emotional dysfunctions. He has a diagnosis of post‑traumatic stress disorder and major depression so I would include pain with those other two factors as being major disruptors of his attention. Each of those by themselves and certainly all of them together, mean that his capacity to focus attention in a way that might be required is going to be impaired…Pain medication, and Mr O'Neill has also been prescribed some sedating medication, and both of those classes of medication typically cause a reduction in attention."

26. Transcript 31:

"Q. What you did do is that you consulted statistics that were evidence based statistics about the average life expectancy of someone of Mr O'Neill's age. Correct?

A. Yes, I did.

Q. What you then did is that you considered the serious medical illnesses that he suffers from and the way that might impact on his life expectancy.

A. Yeah, that's correct.

Q. Is it your opinion that his life expectancy is very much reduced by virtue of the serious medical condition that he finds himself in now?

A. Unfortunately that was my opinion, and it turned out that that was an opinion which was shared by, I think, Dr--

Q. Furst?

A. The psychiatrist who had independently made an estimate.

Q. Yes, Dr Furst's opinion was an age limit in the order of 90 and you indicated in your report that it might be optimistic.

A. That's quite possible, yes."

27. Transcript 32:

"Q. Would he have difficulty following the evidence?

A. Yes, I believe he would. This is the entire procedure would be essentially novel to him and given his age and the difficulties that we've identified with his cognition, I think there would be significant difficulties for him in doing that.

Q. If you apprehended that he would have difficulty giving evidence in his defence?

A. I think that he would have difficulty in providing appropriate and accurate evidence in his defence. I'm sure that he would attempt to cooperative because his social skills remain unimpaired. He would do his best to assist the Court but I think that because of the difficulties, that assistance would have a significant question mark over it.

Q. You've given evidence about deficits in terms of his capacity to attend to the evidence, his attention span. There are also difficulties that you've given evidence about in respect of being able to recall evidence that's been given maybe minutes before or days before in a proceeding, right?

A. Yes, correct.

Q. You've got those two different cognitive problems operating in this particular case?

A. There's at least two. One could add for example, the difficulty in understanding a question. It may well be that Mr O'Neill answers believing that he's been asked question A when in fact Question B was asked and again, that's a potential problem as a result of his cognitive dysfunction…the average adult attention span is about 40 minutes. I think that Mr O'Neill because of his difficulties, particularly with his obstructive sleep apnoea and the medications that he's on, would have an attention span shorter than that and that would certainly be a limitation on his capacity to participate."

28. Transcript 33:

"In my opinion it's difficult to imagine a more difficult situation than Mr O'Neill is in with problems in the physical realm, problems in the mental realm, and problems in the psychological realm, and these multiple factors are acting together interacting with one another and one could hardly imagine a more difficult situation."

Mr Crown did not cross-examination Dr Williams. I accept Dr Williams's evidence.

Dr Richard Furst

29. Transcript 36:

"…I'm suggesting that his life expectancy to be significantly lower than the average person his age without those kind of medical or psychiatric problems. It's not very - I can't give you an exact, obviously, but it's just, but it's not very reassuring in terms of longevity.

Q. One matter that plays into your opinion, one factor that plays into your opinion is the risk of suicide?

A. Very much so, yes. Again, that's difficult to predict with certainty but someone who has an ongoing psychiatric disorder and an ongoing stresses and who has attempted suicide more than once, and particularly a few times in the case of Mr O'Neill, would be a much higher risk of suicide than someone with no such history."

30. Transcript 37:

"Q. You understand that that fall that he had in March of this year resulted in hospitalisation until sometime in May of this year?

A. Yes, it's quite a long admission and I guess to the lay person falls of elderly people might seem trivial but they're actually quite serious. There's a high, like, mortality rate associated with falls in elderly in this age bracket. I can't say the exact figure but that's quite well known amongst the medical community. As people get older and more frail falls can be lethal."

31. Transcript 39:

"Q. Dr Dwyer's opinion that the accused was permanently incapacity for court?

A. Yes.

Q. That there'll be no effective treatment for him?

A. Correct.

Q. Further that he was suffering from some form of age related cognitive decline exacerbated by anxiety?

A. Yes.

Q. And that because of the anxiety that's involved in going to court that was going to impact on his ability to think rationally and properly instruct his solicitor?

A. That's correct. That was the opinion and I've quoted that because I am endorsing, obviously endorsing that opinion in my opinion, and I think that's the most accurate assessment of what's likely to happen."

32. Transcript 40:

"…There's two things, the increase in expertise or the increased assessment of the accused that led to what sounds like it looks to my point of view, a unanimous opinion about his level of impairment or disability from the psychiatric and neurological point of view, and the second thing I would suggest is there's also been an advancing or a progression of his neurological decline in Parkinson's which is predictable because it is progressed. The condition is progressive as well so even if it were to go back in six months' time, in nine months' time from now I'm sure we'd find worse results again on the testing and a psychiatric problem underlying that of depression and PTSD is also chronic, so I'd expect that to continue. It's the fact is, it's hard to tease out a little bit because the factors entwine.

Like Parkinson's is linked with a 30% rate of depression for example, so these conditions intercept. The one condition will cause, Parkinson's will cause progressive cognitive decline, and a movement disorder, and mobility problems but also exacerbate his depression, and these two other issues and then the PTSD or the military type PTSD hasn't ever gone away. That's been a chronic condition that his psychiatrist is treating, and then there's the infection and the problems with the bone infection. I suggest there are - the best way of thinking of this is a multifactorial problem that just keeps on getting worse, and this court case has made it worse again, and the wife's death made it worse again, to the point that this man is very disabled and a high risk of killing himself.

Q. What you're describing there is a condition that has deteriorated over time to the point now?

A. Yes, that's the term, "progressive", means it gets worse over time. It's not stable. It's progressive so in other words what I'm saying is, as I said, if we take the measure of the neuropsychology and neuropsychological assessment now and repeat that six or nine months from now I'm fairly confident that will be worse on these measures of cognition. It won't get better."

33. Transcript 41 to 42:

"…I should say Mr O'Neill can talk, and can talk about some aspects of his history and personal life and perhaps do other things which are purposeful like read a book, for example, but the problem I see is that because of the cognitive impairment and the psychiatric impairment, we would call that severe depression, together with the cognitive impairment and the anxiety being very high, so when you put in a setting such as a court setting where he needs to listen to the evidence and take part in a more active manner, I'm concerned about his capacity to attend to that evidence and work out whether what's being said is accurate or not and then convey that to your counsel. That's the first half, so I'm talking about his participation in following the proceedings in a trial and relaying relevant details to counsel…I'm also concerned about his capacity to give evidence in a trial and to answer coherently and stay on track. I put more detail in my answer about that. The concern I have about that with the intersection of his speech and the way he will look, so it's not just what one says, it's how one looks to the jury or a judge in a trial that counts as well, and I think that would be a problem for him…

Q. Capacity to concentrate will be significantly compromised?

A. Yeah.

Q. You set out there your concerns about how problems with memory, attention, and information processing, will then impact on the way in which he gives evidence in the first instance but also but how that hesitancy, that lack of fluency, would then be potentially misinterpreted?

A. Yes…I'm referring more to the way in which non‑verbal communication is important when people are speaking, like eye contact, voice, tone. I mean, it's well described and I don't have to go through the whole literature but how someone comes across, how someone looks, counts often more than what they actually say as to whether they're believed or not and the concern in someone with this level of impairment is for example, stuttering, or word finding difficulties, or stopping, could be construed by the lay person to be someone who's unconvincing or lying, and it could be that obviously I can't tell whether someone's telling the truth or not but it could be an unfair bias and I expect that's what would happened. It would be an unfair bias on the accused in those circumstances…

Even if he was able to communicate to his counsel and challenge the evidence presented or presented his own evidence, I'm concerned that the stress level would be so high, and the anxiety would be so high, as the risk of suicide would increase substantially and that's just because of the need for the proceedings and him having to give evidence and being accused of these charges, and that would be even if he wasn't in the court itself, kind of like now on a video link, for example, the fact that these trials go on for a number of days would add to the stress and potentially sleep deprivation, anxiety and depression getting worse."

34. Transcript 43:

"…Parkinson's disease involves deficits in the brain and is quite well described as leading to neuropsychiatric syndromes as well including depression, dementia, confusion and other issues."

35. Transcript 44:

"…I think the criminal proceedings themselves could be life threatening for the accused. In other words, were they to proceed there's a high risk of the proceedings themselves of killing Mr O'Neill and him dying in the process of being tried, so enacting justice to try and work out what's happened could be to a lethal outcome and I don't know what the number would be but it's well above zero. It's probably somewhere between zero and 50%. Let's put a number on it, somewhere in that range."

36. Mr Crown did not cross-examination Dr Furst. I accept Dr Furst's evidence.

THE REPORT OF DR PROFESSOR GREENBERG DATED 1 MARCH 2022

37. The Crown obtained a report from Professor Greenberg on the question of fitness. The report was comprehensive. At p 25 of the report, he said:

"Therefore, in summary from a psychiatric perspective, in my opinion and on balance Mr O'Neill currently has the following psychiatric conditions (mental health impairment as defined in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020) and a cognitive impairment (as defined in s 5 of the Act):

(1) mild neurocognitive disorder

(2) chronic adjustment disorder with depressed and anxious mood

(3) post-traumatic stress disorder in partial remission"

38. He assessed Mr O'Neill with regard to s 36 of the Act. At p 29 of his report, he was of the opinion that in regard to s 36 criteria and s 44(5) "Inquiry Procedures", on balance of probability Mr O'Neill is currently unfit to stand trial at this time. He also was of the opinion:

"The fundament cognitive deficits due to his Parkinson's disease which is progressive and more permanent in nature and unlikely to change the fundamental underlying impairment, therefore I am of the view that on balance looking at the combination of all his physical, psychiatric, and psychological impairments, and that even with modifications or special assistance provided to facilitate the defendant's understanding and effective participation in the trial, he is unlikely to obtain a threshold of fitness to stand trial in the near future and unlikely to render him fit to stand trial within the term of the next 12 months."

THE APPLICANT'S SUBMISSIONS

39. The applicant moves the Court for a permanent stay of his criminal proceedings on the following principal bases:

1. To permit the continuation of the proceedings is 'out of accord with common humanity': R v Hakim (1989) 41 A Crim R 372; Subramaniam v The Queen (2004) 79 ALJR 116 at [31]

2. Continuation of the criminal proceedings is unfairly and unjustifiably oppressive: Jago v District Court of New South Wales (1989) 168 CLR 23 (especially at 58)

3. In all the circumstances the applicant cannot receive a fair trial: Jago v District Court of New South Wales (1989) 168 CLR 23

40. It is submitted that the applicant's circumstances are exceptional and warrant the extreme remedy of a permanent stay. Mr Buchen, of Senior Counsel relies upon the following authorities: R v Hakim (1989) 41 A Crim R 372; Subramaniam v The Queen (2004) 79 ALJR 116; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Littler (2001) 120 A Crim R 512; TS v R [2014] NSWCCA 174 and Arrivoli v R [2017] NSWDC 112.

41. Mr Buchen SC submits:

1. The applicant cannot safely travel from his residence in Queensland to be present at the special hearing, nor is the applicant in a physical state to endure properly and adequately the rigours of a special hearing. Requiring the applicant to travel in his parlous condition poses significant and potentially life-threatening health risks.

2. The applicant's capacity to meet the prosecution case and to conduct his defence properly and adequately is substantially limited and compromised by the extreme efflux of time between the alleged events and the trial date. That delay is approaching half a century.

3. The profound forensic disadvantage caused by the delays heightened by the complex demands of a special hearing which include the requirement to respond to numerous allegations of sexual offences, allegations with a generic or undifferentiated quality, the Crown intention to adduce tendency evidence involving alleged offences in three different states.

4. There have been unexplained delays that must fall at the feet of the investigating or prosecuting authorities. The complaint was first made to defence authorities in 2012. The police had possession of the complainant's statement from 2015. Charges were not laid in this State and served until late 2020.

5. The applicant progressed to extreme old age during those years. Importantly, he likely contracted Parkinson's disease during the course of those years. His physical and mental health gravely deteriorated during this period. This has included sustaining falls with associated fractures and other physical complications and suicide attempts.

6. The applicant's cognitive functioning has markedly deteriorated over the relevant period. This decline has negatively impacted (and significantly so) his attention span and memory. Cognitive functions such as these are critical to the applicant's participation in a special hearing. The relevant deterioration will adversely affect his capacity to attend to the evidence (particularly if given over the course of days), recall past events (including relevant contextual matters), properly instruct his lawyers and give evidence in his own defence. It will severely prejudice his capacity to withstand cross-examination.

7. The applicant's multiple conditions operate in combination to impair his ability to participate properly and adequately in the trial. It is anticipated the expert evidence will elucidate the connection between the applicant's sleep apnoea, PTSD, depression, chronic pain, and the sedating effect of necessary medications and his reduced ability to attend to and comprehend the evidence and remember important facts and circumstances.

8. The applicant's life expectancy is very limited. He is 89 years old. A life expectancy of 90 years is medically regarded as optimistic.

9. The applicant cannot receive a fair special hearing.

10. The degree of oppression occasioned by the prosecution is informed and heightened by the circumstance that the applicant has already been tried (and served a sentence of imprisonment) for like conduct involving the same complainant, largely common circumstances, in the same time period. Further, the foreshadowed trial or special hearing will involve the prosecution substantially rehearsing the evidence from the Queensland trial. Given these circumstances and the potential application of principles such as those set out in R v Todd [1982] 2 NSWLR 517 and Mill v The Queen (1988) 166 CLR 59, the public interest in seeing the applicant prosecuted for the counts in the indictment is very much diminished.

11. The unfairness and oppression of the subject of this application cannot be cured or counteracted by a direction or evidentiary or other rulings. The unfairness and oppression go to the very heart of a special hearing.

42. Mr Buchen SC further submits that:

1. To permit the trial to continue in these extreme circumstances would be "out of accord with common humanity." The standard or test set out in R v Hakim and confirmed in Subramaniam v The Queen is satisfied in this case.

2. Continuation of these criminal proceedings would be unfairly and unjustifiable oppressive.

3. In all the circumstances any trial the applicant on the indictment would not be a fair trial or a fair special hearing.

4. The combination of factors relied on in this application support the conclusion that permitting the criminal proceedings to continue rather than staying the proceedings is likely to undermine public confidence in the administration of justice.

43. Mr Buchen's submissions apply with equal force to a special hearing.

RESPONDENT'S SUBMISSIONS

The Applicant's Health

44. The Crown submits that it will be rare that illness of physical or mental condition of the applicant will lead to a stay. The Crown concedes that the applicant would have an impaired capacity to participate in the special hearing. The Crown submits that the proceedings on a special hearing are designed to accommodate the difficulties faced by an accused person who is unfit. The Crown submits that adjustments could be made to facilitate the applicant's participation in the special hearing such as appearing by AVL from his home in Queensland, taking regular breaks in the evidence, reducing court sitting hours and ensuring that the applicant is accompanied by one of his sons who may communicate on his behalf.

Delay

45. The Crown submits that in matters involving sexual assaults a delayed complaint is not uncommon. It may also take longer to investigate a historical allegation as opposed to contemporaneous complaint. Witnesses and documentary records may be more difficult to locate given the passage of time. The Crown submits that the five year period between the complainant's formal statement in 2015 and the commencement of the proceedings for the New South Wales offences can be further explained by the fact that Queensland proceedings were on foot.

Public Interest Factors

46. The Crown submits:

"The question where the criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by weighing process involving a subject of balancing of a variety of factors and considerations including the requirements of fairness to the applicant, the legitimate public interest in disposition of charges of serious offences and the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice": Walton v Gardiner (1993) 177 CLR 378 at 395 to 396.

47. The Crown submits that the complainant had an opportunity to give evidence in the Queensland proceedings however the Queensland offences represent only a small part of the applicant's offending conduct over the course of several years. The Crown submits that the served sentence of nine months does not sufficiently address the entirety of the alleged offending conduct. The Crown says that one purpose of a special hearing is to afford victims an opportunity to see that a form of justice as necessarily imperfect as it is maybe, in the circumstances has been done. The Crown acknowledges that the applicant has experienced some degree of forensic disadvantage given the delay of approximately 44 years before the New South Wales offences were before the courts.

48. The Crown submits that this delay does not expose a fundamental defect that goes to the root of the trial. The Crown relies upon McIver v R [2019] NSWCCA 214. The Crown submits that the applicant has not demonstrated that the combined effect of the delay in the commencement of the proceedings and his physical and cognitive deficits constitutes a fundamental defect in the prosecutorial process. The Crown contends that the community has a right to expect that persons who are accused of serious sexual assault offences are brought to trial. The Crown submits that the Court would not be persuaded that the factors identified by the applicant, either individually or in combination, outweigh the considerable public interest in the continuation of these proceedings.

REVIEW OF THE APPLICANT'S AUTHORITIES

R v Hakim (1989) 41 A Crim R 372

49. In Hakim the 58 year old applicant suffered ischemic heart disease with serious complications and treatment that affected his memory. That led to a variety of physical neurological and psychological conditions with a poor prognosis. Lee CJ at CL upheld a permanent stay on the basis that continuation of the proceedings would be "out of accord with common humanity": Director of Public Prosecutions v Hakim (unreported NSWSC 16 May 1988). The order was upheld on appeal: R v Hakim (1989) 41 A Crim R 372 per Kirby P (with whom Gleeson CJ and Clarke JA agreed).

R v Littler (2001)120 A Crim R 512

50. Littler concerned an appeal against the refusal to permanently stay alleged sexual offences allegedly committed between 38 and 46 years earlier at a boy's home. At the time of the appeal L was aged 71 and suffered ill health. He had indicated his denial of the alleged offences and his intention to plead not guilty. L relied on several factors in support of a permanent stay including the extent of the delay and his subsequent poor health and memory decline.

51. The Court of Criminal Appeal held the trial judge erred in refusing to stay the trial. Adams J considered L's reduced ability to remember "contextual facts of the alleged occurrences" with reasonable reliability to be "significant matter of prejudice". This related to his capacity to recall the possible presence of significant witnesses to alleged offences or surrounding circumstances, but also his capacity to recall "actual timetable of activities and responsibilities undertaken by the applicant and his relationship if any with the complainants".

52. Adams J identified a further matter of prejudice resulting from L's psychological, psychiatric, and medical conditions. His Honour summarised the expert evidence regarding L's mental health (depressed anxiety), poor physical health (cardiac condition), and cognitive functioning (memory difficulties). This included opinions that L's ability to maintain his attention over an extended period of time and in turn his capacity to reliably access information from both recent and longer term memory and to succinctly convey relevant information, was likely to be "very poor under these stressful conditions" and he would likely be "very anxious in the court and possibly very emotional".

53. Greg James J agreeing with the reasons of Adams J, made the following additional observations about the unfairness of the foreshadowed trial at [20]:

"Trials as were here indicated in which, after so many years, each complainant is called, without any other evidence which might reflect upon the credibility of his account, and in which the applicant is affected by the problems, the evidence here shows he is affected by, would, in my view, be unfair. What could the applicant use to test the evidence after so long if he were not guilty? All he could do would be, as he has here, to assert his lack of memory and general denial. What direction could then be given which would ensure the jury could give appropriate regard to the handicaps to proper appreciation of the applicant's position? Since, in my view, there is no appropriate solution to the difficulties answering these questions exposes the trials should be stayed."

TS v R [2014] NSWCCA 174

54. In TS v R the Court of Criminal Appeal considered an appeal from a trial judge's refusal to order a permanent stay of a special hearing. The applicant faced multiple counts of sexual assault alleged to have occurred 37 to 41 years earlier. The 77 year old applicant was unfit to face trial and was beset with a number of health difficulties. The Court concluded the trial judge erred in refusing to order a permanent stay. Bellew J (with whom Leeming JA and Adams J agreed) set out the relevant principles regarding a permanent stay of proceedings at [61] to [64].

Arrivoli v R [2017] NSWDC 112

55. Judge Buscombe permanently stayed a special hearing. The sexual offences were allegedly committed approximately 42 years before the special hearing. The applicant was aged 94 years. The medical evidence about the applicant who was also unfit to face trial is summarised at paras 24 to 48 of the judgment. It was submitted that, "The applicant's ability to defend the allegations had in effect been destroyed by the passage of time." His Honour applied the Hakim/ Subramaniam standard.

"[70]…The applicant is a physical frail 94 year old whose life expectancy is less than three years. The evidence satisfies me that both his physical and mental health has deteriorated significantly over the last two years…

[74]. For these reasons I'm satisfied that it would be out of accord with common humanity to allow the special hearing to proceed. The continuation in those circumstances would be so unfairly and unjustifiable oppressive as to constitute an abuse of process. In coming to this conclusion I have regard to the serious nature of the allegations and the statutory purpose behind the special hearings discussed by the High Court in Subramaniam. I therefore order that the special hearing under the Mental Health (Forensic Provisions) Act be permanently stayed."

Subramaniam v The Queen (2004) 79 ALJR 116

56. The High Court dealt with the legislation dealing with fitness inquiries and its relationship to a stay application. The Court held there may be cases by reason of mental infirmity of the applicant and notwithstanding the legislative regime for conducting fitness assessments and then special hearings, it is still appropriate to permanently stay. That will particularly be the case where common humanity would argue in favour of a stay if the risk to the applicant were real and grave and there was a risk of exacerbation by the continuation of the proceedings.

DETERMINATION

57. I take the following matters into account:

1. The power to grant a stay will only be granted in extreme or exceptional cases.

2. There is a public interest in serious allegations being disposed of on the merits.

3. On 24 February 2016 the applicant was charged with offences against the complainant in Queensland in and about mid-1976. The applicant was convicted after trial in February 2019 of five counts of carnal knowledge. He was sentence to three years imprisonment which was suspended after nine months. The applicant was released from custody in about November 2019. The sentence of imprisonment imposed which included a component of actual custody served by the applicant in advanced years, constituted public admonishment of the applicant.

4. The applicant is 89 years of age. One expert has said his life expectancy is 90. Dr Williams considers a life expectancy of 90 years to be optimistic.

5. The applicant faces a special hearing with offences allegedly committed 46 years ago. The delay has put him at a forensic disadvantage. Potential witnesses including his wife have died, records are missing or destroyed. If the allegations had been made in a timely manner while the applicant's wife was alive there may have been the opportunity to investigate or contradict aspects of the complainant's account. It is said that the incidents occurred in the family home while the applicant's wife was in hospital receiving treatment.

The wife might have been able to give evidence about how frequently the applicant was visiting her if indeed she was in hospital, whether other people were staying in the house, the work hours of the applicant. The applicant's inability to call character evidence from his time in the military service puts him at a disadvantage. That evidence would have come from people who are more senior in the military. His counsel described the chance of obtaining evidence of that kind as "next to zero". I agree with that assessment. In my view a forensic disadvantage direction would fall short of what is required to ensure a fair hearing.

6. The applicant's poor physical health.

The applicant has resided with his son Mark O'Neill since about November 2021. His son provides full time care and assistance with the applicant's day to day living. He suffers from:

1. Parkinson's disease

2. chronic infection and pain associated with a hip reconstruction

3. obstructive sleep apnoea

4. occasional blackouts

5. osteoporosis with multiple fractures

6. He is on various medications. He has been described as "markedly underweight , fragile and unable to care for himself". His fragile physical and mental health has resulted in "poor ability to engage socially".

7. The applicant's mental health.

The applicant has attempted suicide multiple times in the past two years. He suffers from PTSD. He has experienced long term depressive and anxiety symptoms that are exacerbated by his worries about the court proceedings. The applicant suffers from persistent depression with suicidal thoughts. His thinking is disturbed and his judgment severely impaired. A special hearing is likely to worsen his mental state and precipitate further suicidal attempts. It is the evidence of Dr Dwyer and Dr Furst that the applicant's anxiety will impact on his ability to think rationally and properly and to be able to instruct his solicitor. Dr Furst is of the opinion that the criminal proceedings themselves would be life threatening for the applicant. It is Dr Furst's view that if the proceedings were to proceed there is a high risk of the proceedings themselves killing the applicant.

8. The applicant's cognitive functioning.

The applicant has Parkinson's. Parkinson's causes progressive cognitive decline and a movement disorder and mobility problems (Dr Furst, transcript 40 lines 22 to 23). The term "progressive" means it gets worse over time. He has significant difficulties with complex attention executive function, learning and memory, perceptual motor and language skills. The applicant has significant difficulty controlling his attention and filtering out irrelevant information. With regards to his overall cognitive functioning the applicant's estimated intellectual abilities and verbally based attention abilities fell in the extremely low range.

Due to his cognitive decline and continuing cognitive decline, the defence will be unable to receive instructions and present a defence case in a special hearing. No modification of the proceedings can ameliorate this fact. It is clear and I infer from the expert evidence unchallenged, that the applicant is incapable of giving evidence in a special hearing. This is a significant consideration. The applicant has been found unfit to be tried. The uncontested expert evidence is that his cognitive and memory deficits significantly impair his ability to defend the allegations.

9. The public interest in bringing serious allegations to trial or hearing. It is the factor I weigh in the balance. It is not an absolute bar to a permanent stay. If it were then permanent stays would not be granted. Mr Buchen SC submits there are two matters that depreciate that factor in the balancing exercise. Firstly, the maximum penalty (14 years) unlike Gilham v R [2012] NSWCCA 131 (maximum penalty of life), and secondly the public interest in bringing these allegations to trial, is ameliorated by the fact that there has been a trial in Queensland involving the complainant and like offending resulting in a gaol sentence. There is some force to this submission.

10. The test in Subramaniam.

The power to grant a permanent stay extends to special hearings. The approach to be taken to applications for a permanent stay of a special hearing based upon the deteriorating mental health of an accused was considered by the High Court in Subramaniam. The High Court made it clear in [28] that an application for a permanent stay of a special hearing had to be seen in the context of the statute that establishes that particular procedure. One important purpose of the Act was said to be an ameliorative one to give a person unfit to be tried an opportunity of being acquitted. It is also necessary to consider the other purpose of the Act which is that alleged victims to be given an opportunity to see that a form of justice is achieved even if it is not perfect.

The High Court in circumstances where it was argued that there was a deterioration in an accused's mental health and that the continuation of a trial might potentially aggravate that deterioration endorsed as the appropriate test to apply the following, "would it be out of accord with common humanity", to allow it to proceed. The High Court recognised in the context of a special hearing that there may still be cases of mental infirmity calling for the grant of a permanent stay although it considered that instances of such cases are likely to be rare. The High Court noted that the Act had not expressly or by implication forbid the application of the principles concerned with the granting of a stay, and that common humanity would argue in favour of a permanent stay if the risk of exacerbation of a condition was a real one and likely exacerbation of a condition grave.

The applicant here relies upon the deterioration of both his mental and physical health and the risk of exacerbation to both his mental and physical health should a special hearing not be stayed. I consider that the test endorsed by the High Court in Subramaniam is the appropriate test to be applied to the applicant's application despite the fact that the applicant does not rely solely upon his deteriorating mental health. I earlier reviewed in detail the unchallenged medical evidence before me. That evidence satisfies me that the applicant is 89, wheelchair bound, is physically frail with a life expectancy of 90. The evidence satisfies me that both his physical and mental health has deteriorated significantly over the last three years.

Dr Dwyer is of the opinion that the applicant is permanently incapacitated for court and that there is no effective treatment for him. The anxiety of the hearing will impact on his ability to think rationally and properly instruct his solicitor. Dr Furst agrees. Dr Furst is of the view that the applicant is very disabled and a high risk of killing himself. Dr Furst is concerned that the stress level of the applicant would be so high as the risk of suicide would increase substantially. Dr Furst went on to say at transcript 44 line 20 to 23,

"I think the criminal proceedings themselves could be life threatening for the accused. In other words, were they to proceed there's a high risk of the proceedings themselves of killing Mr O'Neill and him dying in the process of being tried…could be a lethal outcome…"

This evidence was unchallenged.

Dr Williams was of the opinion that the applicant would have difficulty following the evidence.

"The entire procedure would be essentially novel to him and given his age and the difficulties that were identified with his cognition I think there would be a significant difficulties for him in doing that" (transcript 32).

Dr Williams was of the view that the applicant would have difficulty in providing appropriate and accurate evidence in his defence (transcript 32). His evidence would have a significant question mark over it. Dr Williams has concerns about the applicant understanding a question as a result of his cognitive disfunction. He gave the example of Mr O'Neill answering believing that he has been asked question A when in fact question B was asked (transcript 32).

Dr Williams concluded his evidence at transcript 33:

"In my opinion it's difficult to imagine a more difficult situation than Mr O'Neill is in with problems in the physical realm, problems in mental realm, and problems in the psychological realm, and their multiple factors are acting together, interacting with one another and one could hardly imagine a more difficult situation."

Dr Williams' evidence was unchallenged. I am satisfied on the evidence of Drs Dwyer, Furst and Williams that if the special hearing proceeded there is a high likelihood that the applicant will suffer extreme levels of anxiety. He will become unwell or die. I do not believe that allowing the applicant to remain in Queensland and shortening hearing hours will ameliorate the medical and psychological issues of the applicant. He is frail with severe anxiety. His cognitive condition would mean he was a bystander and not a participant.

I am satisfied for the above reasons that there is a real risk that if the special hearing proceeded there would be a significant deterioration in both the physical and mental health of the applicant. I am satisfied that the process would put him at risk of death. I am satisfied it would be out of accord with common humanity to allow the special hearing to proceed. The special hearing would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. In coming to this conclusion I have had regard to the serious nature of the allegations and the statutory purpose behind the special hearings discussed by the High Court in Subramaniam.

ORDER

58. The special hearing under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 be permanently stayed.

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Decision last updated: 18 December 2023