R v O'Brien
[2017] NZHC 303
•1 March 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2014-085-14183 [2017] NZHC 303
THE QUEEN
v
MICHAEL JOSEPH OʼBRIEN PATRICK FRANCIS OʼBRIEN C
PAUL ANTHONY MAX
Hearing: 28 February 2017 Counsel:
G J Burston, M J Ferrier, P W Gardyne and A McIlroy for Crown
R B Squire QC for M OʼBrien
C W J Stevenson for P OʼBrienMr C in person
M A Corlett QC for Mr Max
Judgment:
1 March 2017
JUDGMENT OF DOBSON J
[Application by Patrick OʼBrien for Stay]
[1] The renewed application for a stay, brought on behalf of Patrick O’Brien (Mr O’Brien) in the week before the trial was then scheduled to start, has followed a somewhat protracted course.
[2] Mr O’Brien faces two charges that he was a party to obtaining a benefit by deception. The charges relate to Mr O’Brien’s involvement in applications for a class 4 operator’s licence under the Gambling Act 2003, which failed to disclose the alleged involvement of his son, Michael O’Brien.
[3] When the application was first considered, I found the evidence of
Mr O’Brien’s general practitioner and his daughter insufficient to establish adverse
R v OʼBRIEN [2017] NZHC 303 [1 March 2017]
health conditions to an extent that would prevent him from obtaining a fair trial. At that time I directed that an orthopaedic surgeon should report on the state of Mr O’Brien’s hips and knees, given concerns expressed in a non-specific way by his general practitioner that his lack of mobility and level of pain would prevent Mr O’Brien attending and conducting a proper defence.
[4] The report of orthopaedic surgeon, Mr Meighan, was provided in response to that direction on 14 February 2017. His assessment of Mr O’Brien was that he would be fit to sit in a chair during court proceedings, subject to a number of forms of assistance. Mr Stevenson applied to cross-examine Mr Meighan, indicating that he wished to question the surgeon about the cumulative impact of pain and immobility over the course of a lengthy trial. Mr Meighan was unavailable until
1 March 2017 and arrangements were made for him to be available for cross- examination that day.
[5] In terms of arrangements made in the week before the trial started, Mr O’Brien attended from an AVL suite in the Blenheim courthouse on the first day of the trial, 27 February 2017. The extent of Mr O’Brien’s attendance is noted in my ruling 3 dated 28 February 2017.
[6] As a result of my observations of Mr O’Brien during the first day of trial, I reconsidered the feasibility of the conditions Mr Meighan recognised as necessary to enable Mr O’Brien to attend the trial. I was concerned that the extent of pain apparently caused by sitting for lengthy periods, and the frequency of circumstances requiring toilet breaks for Mr O’Brien, placed in question his ability to adequately follow the trial and present a proper defence.
[7] I accordingly raised with counsel the prospect that some form of stay of the proceeding as against Mr O’Brien may now be warranted. I signalled that concern at the start of the hearing on 28 February 2017 and indicated that I would hear counsel involved in the issue at 4.30pm that afternoon.
[8] Mr Burston maintained the Crown’s stance that the documented and observed
state of Mr O’Brien’s health was not sufficient to meet the high threshold for
granting a stay on the basis of his incapacities. He cited various forms of accommodation that have been made in other cases to emphasise the importance of allowing trials to proceed, subject to whatever assistance was required to enable an incapacitated defendant to mount a defence. He instanced a recent judge alone trial in the Wellington High Court where an elderly defendant with angina was accommodated by shorter sitting hours, the presence of a medical attendant, and an adjournment during the course of that defendant giving evidence to enable him to visit hospital.
[9] Mr Burston also raised a concern at the precedential impact of any decisions that might be seen as “lowering the bar” for recognition of a level of incapacity sufficient to warrant a stay.
[10] If, despite Mr Burston’s concerns, I found that this trial ought not to continue against Mr O’Brien, then he urged the more appropriate course was to exercise the Court’s powers of its own motion to sever the charges against him from those against the other defendants, and adjourn his trial on appropriate terms.1
[11] Mr Stevenson submitted that Mr O’Brien’s medical symptoms were sufficient to justify a stay. Although his bowel cancer is in remission, the oncologist acknowledged that it is a terminal condition. In addition, he is now painfully crippled by osteoarthritic conditions in both hips and one knee, to an extent that would not have gone untreated were it not for a more pessimistic prognosis on his bowel cancer until recently. He is an 83 year old retired accountant with no previous convictions.
[12] Mr Stevenson suggested that the assessment of a defendant’s ability to obtain a fair trial has to be case-specific. Here, the issues were complex, the case was document-heavy, and Mr O’Brien was charged as being a party to a number of offences, with evidence likely to run between five and seven weeks. The level of concentration required, and the sapping of his energy from prolonged days and weeks in Court arguably distinguished this case from others where a single defendant
was facing a small number of single issue or less complex charges.
1 Criminal Procedure Act 2011, s 138(4).
[13] Mr Stevenson’s ultimate objective was to achieve a stay so that the prospect of resumed proceedings would not hang over Mr O’Brien. However, he accepted as appropriate either a provisional stay on terms which he likened to the decision in R v Schofield,2 or adopting the course suggested by Mr Burston, so long as the adjournment of Mr O’Brien’s trial was on terms that required there to be a marked improvement in Mr O’Brien’s health before the Crown was permitted to bring on a
separate trial of the charges against him.
[14] I have decided that this trial should not proceed against Mr O’Brien for the
following reasons.
[15] First, I am satisfied that Mr O’Brien’s current state of health will prevent him from getting a fair trial. The accommodations suggested by Mr Meighan as necessary to enable his attendance would be difficult to achieve to an extent that alleviated the difficulties Mr O’Brien would encounter. The cumulative impact of attempting, for days and weeks on end, to follow the evidence and ultimately to consider giving evidence, prejudices his position to an unacceptable extent.
[16] The assessment of Mr O’Brien’s ability to get a fair trial can be contrasted with the considerations in R v Duval, which is often cited for the fundamental proposition that a defendant must be fit to stand trial if he or she is to be given the right, under s 25(a) of the New Zealand Bill of Rights Act 1990, to a fair trial.3
Mr Duval was a 60 year old man charged with serious sexual offending against three
young girls. He was found not to have a mental disorder, but suffered substantial chronic pain as a result of surgery for injuries following accidents. Thomas J was satisfied that the range of accommodations he directed to be put in place were sufficient to secure fair trial. That included provision of a comfortable chair, shortened hours, and other accommodations for Mr Duval’s physical comfort. The extent of Mr Duval’s medical issues were materially less than is the case with Mr O’Brien and, applying the same standards, the accommodations suggested by Mr Meighan would not be nearly so effective to alleviate the grounds for concern
here, than was the case with Mr Duval.
2 R v Schofield [2012] NZHC 3463.
3 R v Duval [1995] 3 NZLR 202 (HC).
[17] Second, I am mindful of the relative importance of Mr O’Brien’s alleged part in the criminal enterprise. Although the Crown case alleges involvement that is not insignificant, he was by no means the prime mover, which is alleged to be his son, Michael. Michael O’Brien faces 15 charges, with Mr O’Brien and Mr C being charged under s 66 of the Crimes Act 1961 in respect of two of those charges, and Mr Max being charged in relation to the remaining 13.
[18] Although the Crown case will be that Mr O’Brien was fully aware of the nature of the deception being procured by his involvement, the Crown case in opening is that some of the formal documents presented to third parties as if signed by Mr O’Brien were (on the analysis of a handwriting expert to be called) signed by Michael O’Brien.
[19] Third, I also have regard to the impact of the need to accommodate Mr O’Brien’s limited ability to participate on the presentation of defences for the other three defendants. Mr Burston accepted that this is a relevant consideration in this case. The need to accommodate Mr O’Brien’s conditions would involve substantially more breaks during each day, and very likely a pattern of shorter Court sitting days. It is virtually inevitable that the present estimate of up to seven weeks’ duration for the trial would be very substantially extended. That would place pressure on the other defendants and counsel to an unacceptable extent.
[20] I accordingly sever the charges against Mr O’Brien and adjourn this trial of
them.
[21] If the Crown elects, after conclusion of the present trial, to proceed separately on one or both of the charges against Mr O’Brien, that would need to occur in circumstances in which the task for Mr O’Brien to present a proper defence is demonstrably easier than that task would have been for him in present circumstances. Such change of circumstances might arise by virtue of improvement in his state of health, or a decision by the Crown to reduce the charges in a way that would substantially shorten a trial, or a combination of both.
[22] The Crown will require leave to continue as against Mr O’Brien, which ought to be considered on the basis that the combination of difficulties preventing a fair trial at this time no longer exist.
Dobson J
Solicitors:
Crown Solicitor, Wellington
R B Squire QC, Wellington for Mr M O’Brien
Christopher Stevenson, Wellington for Mr P O’Brien
M A Corlett, Auckland for Mr Max
Copy to: Mr C
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