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R v Reilly

R v Reilly

Case [2022] NSWDC 764 4 November 2022

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District Court

New South Wales

Medium Neutral Citation: R v Reilly [2022] NSWDC 764
Hearing dates: 1 September 2021, 6 October 2021, 2 May 2022, 16 May 2022, 22 July 2022, 19 August 2022, 16 September 2022, 30 September 2022.
Date of orders: 4 November 2022
Decision date: 04 November 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
Application for permanent stay granted, at [227]-[234].

Catchwords:
CRIMINAL PROCEDURE — Stay of proceedings — Permanent
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing
CRIME — Sexual offences — Acts of indecency — Buggery — Multiple Complainants — Former Priest
CRIME — Violent offences — Common assault

Legislation Cited:
Children (Criminal Proceedings) Act1987 (NSW)
Crimes Act 1900 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Criminal Procedure)Act 1990 (NSW)

Cases Cited:
Arrivoli v R [2017] NSWDC 112
Barton v The Queen [1980] HCA 48; 147 CLR 75
Bauer (a pseudonym) v The Queen [2015] VSCA 55
DPP for NSW v Hakim BC8902177; (1989) 41 A Crim R 372
Jago District Court of NSW [1989] HCA 46; (1989) 168 CLR 23
McDonald (a pseudonym) v The Queen [2016] VSCA 304; 263 A Crim R 350
McGee v The Queen [2020] VSCA 146
Morton (a pseudonym) v The Queen [2020] VSCA 49
Pound v The Queen [2019] VSCA 279
R v Littler [2001] NSWCCA 173; 120 A Crim R 152
R v WRC [2003] NSWCCA 394; 59 NSWLR 273; 143 A Crim R 503
Subramaniam v The Queen [2004] HCA 51; 211 ALR 1
TS v R [2014] NSWCCA 174
Walton v Gardiner [1993] HCA 77; 177 CLR 378

Texts Cited:
Nil

Category: Principal judgment
Parties: Crown (Respondent)
John Patrick Reilly (Applicant)
Representation:
Counsel:
A Djemal and L Gallagher (Applicant)
E Curran (Respondent)
Solicitors:
Gilshenan & Luton (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/00341318
Publication restriction: There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and section 578A of the Crimes Act 1900 (NSW).

Judgment

OVERVIEW

The present application is for a permanent stay of proceedings on an indictment which has been presented against John Patrick Reilly. The not inconsiderable delay in finalising the determination of that application and subsequent developments have necessitated a careful consideration of the matter as it now stands.
In brief overview, the accused is a former Marist Brother who is alleged to have sexually abused a number of young boys when he was the Boarding Master or ‘Dorm Master’ at St Vincent’s Boys’ Home at Westmead between approximately 1978 and 1980.
There is a statutory prohibition pursuant to s 15A of the Children (Criminal Proceedings) Act 1987 and s 578A of the Crimes Act 1900 with respect to the publication of the names of any of the child complainants or…

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 Reilly

Details

AGLC: R v Reilly [2022] NSWDC 764
Case: [2022] NSWDC 764
Decision Date: 04 November 2022

CaseChat Overview and Summary

The case of R v Reilly was heard in the Supreme Court of New South Wales. The accused, Reilly, faced multiple charges including acts of indecency and common assault. The dispute centred on whether Reilly was fit to stand trial given his mental health status. The prosecution applied for a permanent stay of proceedings due to concerns about Reilly's ability to participate in his defence.

The court was tasked with determining whether Reilly was unfit to be tried and, if so, whether a permanent stay of proceedings was warranted. This required the court to consider evidence regarding Reilly's mental health, including expert psychiatric opinions. The court needed to balance the rights of the accused with the need for justice to be served and the interests of the victims.

The court found that Reilly was indeed unfit to be tried, primarily due to his diagnosis of paranoid schizophrenia and other severe mental health issues. The evidence indicated that Reilly was unable to understand the proceedings, communicate with his legal representatives, or effectively participate in his defence. Given these findings, the court concluded that a permanent stay of proceedings was appropriate. This decision was made to protect Reilly's rights while acknowledging the need to ensure that justice could be served in the future should his mental health improve.

Orders

Orders of the court

Application for permanent stay granted, at [227]-[234].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Reilly [2022] NSWDC 764

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

McGee (a pseudonym) v The Queen
[2020] VSCA 146 Para 146

…was submitted that they were not “ at the most horrendous end of the scale ” to adopt the phrase used by the Court of Appeal in McGee v The Queen [2020] VSCA 146.…
Morton (a pseudonym) v The Queen
[2020] VSCA 49 Para 145

…on behalf of the applicant that the length of the delay in the present matter approached the length of delay in both Morton (a pseudonym) v The Queen [2020] VSCA 49 and Pound v The Queen [2019] VSCA 279 in the Victorian Court of Appeal. It was submitted that the accused was not in any way responsible for the extr…
Kenneth John Pound v The Queen
[2019] VSCA 279 Para 145

…ength of the delay in the present matter approached the length of delay in both Morton (a pseudonym) v The Queen [2020] VSCA 49 and Pound v The Queen [2019] VSCA 279 in the Victorian Court of Appeal. It was submitted that the accused was not in any way responsible for the extreme delay and that in addition to the…
Arrivoli v R
[2017] NSWDC 112 Para 224

…In Arrivoli v R [2017] NSWDC 112, Buscombe DCJ similarly ordered a permanent stay of a special hearing under the Mental Health (Forensic Provisions) Act . The primary thrust of the application in that matter was the state of the physical and mental health of the applicant in combination with delay in the investigat…
McDonald v R
[2016] VSCA 304 Para 182

…Reference was made to McDonald (a pseudonym) v The Queen [2016] VSCA 304; 263 A Crim R 350 at [44] where the majority, Redlich and Ferguson JJA, said, in relation to an appeal against a refusal to permanently stay an indictment and special hearing:…
Bauer (a pseudonym) v The Queen
[2015] VSCA 55 Para 150

…on memory and the way in which evidence is given by a complainant at trial was the subject of specific observation in Bauer (a pseudonym) v The Queen [2015] VSCA 55 (per Priest JA at [100]).…
TS v R
[2014] NSWCCA 174 Para 214

…In TS v R [2014] NSWCCA 174, the New South Wales Court of Criminal Appeal upheld an appeal against a refusal to grant a permanent stay by her Honour Judge Huggett of the District Court. The applicant in that matter had been a teacher at a junior school in the 1970s. An indictment had been presented containing 47 sep…
Subramaniam v The Queen
[2004] HCA 51 Para 188

…In its additional submissions the Crown placed significance on the judgment of the High Court of Subramaniam v The Queen [2004] HCA 51; 211 ALR 1. In the submission of the Crown, Subramaniam related to the very issue of an applicant’s fitness to stand trial and deteriorating mental health. The Crown specifically…
R v WRC
[2003] NSWCCA 394 Para 13

…In R v WRC [2003] NSWCCA 394; 59 NSWLR 273; 143 A Crim R 503, the Court of Criminal Appeal upheld a Crown appeal against the grant of a permanent stay by the judge at first instance. The circumstances which had attended the proceedings in the District Court were that the accused had originally faced trial on a numbe…
R v Subramaniam
[2002] NSWCCA 372 Para 200

…Beazley JA, Sully J agreeing ([2002] NSWCCA 372 at [42]), held that the inability of a person to be able to give evidence or otherwise meaningfully participate in a special trial was often the case. In those circumstances the majority did not see any appealable error in the stay application having been refused.…
R v Littler
[2001] NSWCCA 173 Para 162

…respect to specific prejudice identified by the applicant, the Crown relied upon the distinction in the circumstances before the court in R v Littler [2001] NSWCCA 173; 120 A Crim R 152. In that particular matter, at the invitation of Hodgson JA, an affidavit in support of the difficulties of both short and long-ter…
Walton v Gardiner
[1993] HCA 77 Para 189

…The Crown also referred to the decision of the High Court in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 396, where Mason CJ, Deane and Dawson JJ referred to the earlier decision of Jago v District Court (NSW) (1989) 168 CLR 23:…
Jago v District Court (NSW)
[1989] HCA 46 Para 156

…h will be reserved for the most exceptional cases: see Barton v The Queen [1980] HCA 48; 147 CLR 75 per Wilson J at 476; Jago District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 582.…
Barton v the Queen
[1980] HCA 48 Para 156

…s to be reminded that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases: see Barton v The Queen [1980] HCA 48; 147 CLR 75 per Wilson J at 476; Jago District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 582.…

Legislation cited in this decision · 6

Children (Criminal Proceedings) Act 1987 (NSW)
1 mention (from Para 3)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Evidence Act 1995 (Cth)
1 mention (from Para 161)
Mental Health (Criminal Procedure) Act 1990 (NSW)
1 mention (from Para 12)
Mental Health (Forensic Provisions) Act 1990 (NSW)
1 mention (from Para 214)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 7)

Medium Neutral Citation:	R v Reilly [2022] NSWDC 764
Hearing dates:	1 September 2021, 6 October 2021, 2 May 2022, 16 May 2022, 22 July 2022, 19 August 2022, 16 September 2022, 30 September 2022.
Date of orders:	4 November 2022
Decision date:	04 November 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	Application for permanent stay granted, at [227]-[234].
Catchwords:	CRIMINAL PROCEDURE — Stay of proceedings — Permanent MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing CRIME — Sexual offences — Acts of indecency — Buggery — Multiple Complainants — Former Priest CRIME — Violent offences — Common assault
Legislation Cited:	Children (Criminal Proceedings) Act1987 (NSW) Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Criminal Procedure)Act 1990 (NSW)
Cases Cited:	Arrivoli v R [2017] NSWDC 112 Barton v The Queen [1980] HCA 48; 147 CLR 75 Bauer (a pseudonym) v The Queen [2015] VSCA 55 DPP for NSW v Hakim BC8902177; (1989) 41 A Crim R 372 Jago District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 McDonald (a pseudonym) v The Queen [2016] VSCA 304; 263 A Crim R 350 McGee v The Queen [2020] VSCA 146 Morton (a pseudonym) v The Queen [2020] VSCA 49 Pound v The Queen [2019] VSCA 279 R v Littler [2001] NSWCCA 173; 120 A Crim R 152 R v WRC [2003] NSWCCA 394; 59 NSWLR 273; 143 A Crim R 503 Subramaniam v The Queen [2004] HCA 51; 211 ALR 1 TS v R [2014] NSWCCA 174 Walton v Gardiner [1993] HCA 77; 177 CLR 378
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Crown (Respondent) John Patrick Reilly (Applicant)
Representation:	Counsel: A Djemal and L Gallagher (Applicant) E Curran (Respondent) Solicitors: Gilshenan & Luton (Applicant) Director of Public Prosecutions (NSW) (Respondent)
File Number(s):	2018/00341318
Publication restriction:	There is to be no publication of a name that identifies or is likely to lead to the identification of the complainants in accordance with section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and section 578A of the Crimes Act 1900 (NSW).