R v O'Brien - [2017] NZHC 303

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 OʼBrien

Mr 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…

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'Brien

Details

AGLC: R v O'Brien [2017] NZHC 303
Case: [2017] NZHC 303
Decision Date: 1 March 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Dobson J heard the case of the Queen versus Michael Joseph O’Brien, Patrick Francis O’Brien, and Paul Anthony Max. The defendants were charged with being party to obtaining a benefit by deception, specifically in relation to applications for a class 4 operator’s licence under the Gambling Act 2003, which did not disclose the involvement of Michael O’Brien, Patrick O’Brien’s son. Patrick O’Brien applied for a stay of the proceedings against him, citing his health conditions that prevented him from obtaining a fair trial. The court had to determine whether the defendant’s health conditions were sufficient to warrant a stay of the proceedings against him.

The court considered the defendant’s health conditions, including his osteoarthritic conditions in both hips and one knee, and his bowel cancer, which was in remission but considered a terminal condition. The court also considered the complexity of the case, the document-heavy nature, and the length of the evidence, which was likely to run between five and seven weeks. The court had to balance the defendant’s right to a fair trial against the need to allow trials to proceed, subject to whatever assistance was required to enable an incapacitated defendant to mount a defence.

The court decided that the trial should not proceed against Patrick O’Brien for the following reasons. Firstly, the court was satisfied that Patrick O’Brien’s current state of health would prevent him from getting a fair trial. The accommodations suggested by the orthopaedic surgeon as necessary to enable his attendance would be difficult to achieve to an extent that alleviated the difficulties he would encounter. The cumulative impact of attempting, for days and weeks on end, to follow the evidence and ultimately to consider giving evidence, prejudiced his position to an unacceptable extent. Secondly, the court was mindful of the relative importance of Patrick O’Brien’s alleged part in the criminal enterprise. Although the Crown case alleged involvement that was not insignificant, he was by no means the prime mover, which was alleged to be his son, Michael. Thirdly, the court also had regard to the impact of the need to accommodate Patrick O’Brien’s limited ability to participate on the presentation of defences for the other three defendants. The need to accommodate Patrick O’Brien’s conditions would involve substantially more breaks during each day, and very likely a pattern of shorter court sitting days. It was 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. The court accordingly severed the charges against Patrick O’Brien and adjourned this trial of them. If the Crown elected, after conclusion of the present trial, to proceed separately on one or both of the charges against Patrick O’Brien, that would need to occur in circumstances in which the task for Patrick O’Brien to present a proper defence was demonstrably easier than that task would have been 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. The Crown would require leave to continue as against Patrick O’Brien, which ought to be considered on the basis that the combination of difficulties preventing a fair trial at this time no longer existed.

Orders