R v O'Brien - [2016] NZHC 1719

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2014-085-014183 [2016] NZHC 1719

THE QUEEN

v

PATRICK FRANCIS OʼBRIEN

Hearing: 22 July 2016

Counsel:

G J Burston for Crown
N J Sainsbury (on instructions from for C W J Stevenson) for
Defendant

Judgment:

26 July 2016

RESERVED JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
4 pm on the 27th day of July 2016

R v OʼBRIEN [2016] NZHC 1719 [26 July 2016]

[1] Mr Patrick O’Brien is charged with two charges of obtaining by deception. He, along with his co-defendants, is for trial in February. Depending on the outcome of a pending application for a trial by judge alone the estimated hearing time is between six and eight weeks.1

[2] Mr O’Brien is 82 years old and is terminally ill. His health has led him to apply for a stay of the proceedings against him.

Background

[3] The two charges against Mr O’Brien involve:

(a) the allegation that he, together with his son Michael and Mr Kevin Coffey, obtained a benefit (being an operator’s licence to conduct class 4 gambling) for the Bluegrass Trust by deception, namely by false representations made with the intent of deceiving the Secretary of Internal Affairs. The essence of this allegation is that critical information about Michael’s close involvement in the operation of the Trust was withheld or misrepresented; and

(b)the allegation that Mr O’Brien, Michael, and Mr Coffey obtained control over property for Bluegrass Trust, (being the net proceeds gained from class 4 gambling) by way of fraudulent stratagem adopted with the intent of deceiving the Secretary for Internal Affairs. The essence of this allegation is that Michael’s significant influence on the management of the Trust was actively concealed.

The law

[1] The jurisdiction to grant a stay due to medical circumstances comes from the right to a fair trial contained in s 25 of the New Zealand Bill of Rights Act 1990 (NZBORA) and the common law, and the High Court’s inherent jurisdiction. The
relevant test is whether a fair trial is possible. The onus is, of course, on the

1 Trial is set down for eight weeks commencing 7 February 2017. There is a pre-trial hearing on
1-2 August to determine the Crown application for judge-alone trial (which is supported by
Mr O’Brien but not by another of the defendants), and s 147 applications by the defendants.

defendant to “put before the Court compelling medical evidence that a fair trial [is] impossible.”2 A trial will be unfair if a defendant suffers a disability which prevents him or her from mounting a meaningful defence; that is, if the defendant is unable to comprehend what is taking place at the trial, to appreciate the case against him or her, or to meaningfully contribute to the preparation and presentation of a defence.3

[2] The authorities to which I was referred included:

(a) R v Shoebridge, in which the application for stay was successful. The defendant had a range…

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 [2016] NZHC 1719
Case: [2016] NZHC 1719
Decision Date: 26 July 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Patrick O'Brien applied for a stay of proceedings against him due to his terminal illness and advanced age. He is charged with two counts of obtaining by deception related to his involvement with the Bluegrass Trust. The case is set for trial in February 2017, pending the outcome of an application for a judge-alone trial. Mr. O'Brien's health has deteriorated since his initial diagnosis, with his oncologist confirming that his bowel cancer has spread to his liver and is terminal. The court had to determine if Mr. O'Brien's health condition would prevent him from participating in a fair trial. The legal test for granting a stay due to medical circumstances is whether a fair trial is possible, and the onus is on the defendant to provide compelling evidence that a fair trial is impossible. The court considered various authorities and found that Mr. O'Brien's condition, while serious, did not reach the level of impairment seen in other cases where a stay was granted. The court found that the defendant's ability to communicate with a lawyer, understand the charges, and participate in the trial was not significantly impaired by his age and medical condition.

The court declined the application for a stay of proceedings, finding that the defendant's evidence did not establish that a fair trial was impossible. The court noted that if Mr. O'Brien's condition were to deteriorate, a fresh application could be made. The trial is set to proceed as scheduled, subject to any changes in the defendant's medical condition. The court's decision ensures that the proceedings will not be indefinitely delayed, while also considering the defendant's health and well-being.

Orders