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 of conditions but primarily “dementia of an Alzheimer’s type” which resulted in “limited attention span, intermittent memory loss and confusion, difficulty expressing himself verbally,    and    difficulty    in    comprehending    questions    and

instructions”;4

(b)W  v  Serious  Fraud  Office,  in  which  the  defendant  had  a  major depressive disorder which had caused impairment of cognitive function, affecting long and short term memories.  A stay was refused although the Judge noted that arrangements should be made to accommodate the impairment;5

(c)      Ashby v Police,  in  which  the defendant  had  terminal  liver cancer which was “aggressive and debilitating”.   The evidence was that he was “likely to die in a matter of weeks” and experienced pain, dizziness, cognitive impairment, significant weight loss, fever, blurred vision, headache, increasing fatigue and diminishing concentration span. The stay was declined but the trial was adjourned;6

(d)R v Schofield, in which the defendant had terminal liver cancer, which resulted  in  reduced  mobility  (he  could  not  walk  except  from  the

bedroom to the bathroom and back), significant discomfort, nausea

2      R v Schofield [2012] NZHC 3463 at [24].

3      R v Shoebridge [2002] BCL 981 at [4].

4 At [8].

5      W v Serious Fraud Office (2001) 20 FRNZ 371.

6      Ashby v Police HC Rotorua CRI-2007-070-4304, 12 February 2009.

and vomiting.   The proceeding was stayed, but not on a permanent basis.7

[3]      There was also some discussion before me about the “common humanity” test which has been applied in South Australia.8   Counsel were, however, agreed that this is not a separate ground on which the Court could exercise its stay jurisdiction, and that the test is merely a restatement of (and is no wider than) the fair trial test.

This case

[4]      The  Court  had  before  it  an  affidavit  dated  18  March  2016  in  which Mr O’Brien’s oncologist, Dr Delany, confirmed that Mr O’Brien has bowel cancer that has spread to his liver.  In his affidavit he deposed that the cancer was terminal and his life expectancy is to be measured in months.   In June 2015 it had been estimated at “possibly a year”.

[5]      The submissions filed on Mr O’Brien’s behalf were necessarily predicated on this evidence.   His principal contention was that his case was on all fours with Schofield.  The submissions also emphasised that, even if Mr O’Brien did survive until February, the complexity of a fraud trial such as the present and the sheer extent of the documentation meant that a man in his condition would not be able to conduct a proper defence.

[6]      Dr Delany appeared by video-link at the hearing before me and updated his evidence and his view of Mr O’Brien’s prognosis.   He had met with Mr O’Brien seven  days  earlier.    It  is  fair  to  say  that  the  outlook  for  Mr  O’Brien  seems considerably better than it was a few months ago.  In particular Dr Delany said that:

(a)       Mr  O’Brien’s  cancer  was  quiescent  and  he  was  in  a  “clinical remission” which was “good and durable”;

7      R v Schofield, above n 2.  The stay was granted on terms that, in the event of an unforeseen improvement in Mr Schofield’s medical condition, the Crown could apply for it to be lifted.

8      R v Jacobi [2012] SASCFC 115.

(b)while Mr O’Brien would have some difficulty dealing with the complexity and stress of a proceeding such as this, that was as much to do with his age and general frailty as his medical condition;

(c)       he could see no issue with Mr O’Brien’s ability to communicate with

a lawyer or to understand the nature of the charges against him; and

(d)he would presently put Mr O’Brien’s life expectancy at two to three years.

[7]      In my view, it is far from obvious from Dr Delany’s evidence that a fair trial is impossible.  Old age and frailty does not suffice.  His evidence falls short of that in Shoebridge, Ashby and Schofield, where particular symptoms of the relevant conditions were identified that would specifically give rise to an inability to prepare for, or participate in, the trial.  No such symptoms were identified here.

[8]      The application for stay is therefore declined.   Obviously if Mr O’Brien’s

condition deteriorates a fresh application may be made.

Solicitors:           Crown Solicitor, Wellington.

Christopher Stevenson, Wellington, for defendant.

“Rebecca Ellis J”