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

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].
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

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…

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 O'Neill (No 2)

Details

AGLC: R v O'Neill (No 2) [2023] NSWDC 572
Case: [2023] NSWDC 572
Decision Date: 30 November 2023

CaseChat Overview and Summary

The case of R v O'Neill (No 2) involved the accused, O'Neill, and was heard in a court of law. The nature of the dispute centred on the application of the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020, specifically the provisions allowing for a special hearing to determine the accused's criminal responsibility. The matter was brought before the court to decide whether the special hearing should be permanently stayed.

The legal issues the court was required to decide involved the interpretation and application of the aforementioned Act. Central to the case was whether the court could exercise its discretion to permanently stay the special hearing under section 22 of the Act, considering the accused's history of violence and the potential risk to the community. The court also had to consider whether the accused's conduct was out of accord with the common humanity, which is a criterion for the stay of the special hearing.

The court's reasoning focused on the seriousness of the accused's criminal history, the risk he posed to the community, and the likelihood of him being able to control his violent impulses in the future. The court found that the accused's conduct was indeed out of accord with common humanity and, therefore, justified the exercise of its discretion to permanently stay the special hearing under section 22 of the Act. The court concluded that the accused's history of violence, coupled with the potential risk to the community, warranted the permanent stay of the special hearing.

The final orders of the court were that the special hearing under the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 be permanently stayed. This decision reflects the court's determination that the accused's history of violence and the risk he posed to the community warranted the permanent stay of the special hearing, in accordance with the provisions of the Act.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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