Mr O'Neill is 88 years of age. On 4 March 2022 he was arraigned on a 12‑count indictment and pleaded not guilty. The allegations are historical and are said to have occurred between February 1976 and July 1976. There are seven counts of indecent assault contrary to s 81 of the Crimes Act and five counts of buggery contrary to s 79 of the Crimes Act. The alleged offences occurred at various locations including Lavington, Lake Hume and Coonabarabran.
The complainant was 17 years of age on 26 November 1975, when he joined the Australian Army and completed his 13 weeks of recruit training before being allocated to the Ordnance Corps. The complainant made a complaint in 2012 about the accused to the Defence Abuse Response Team. The complainant alleged that the accused committed offences against him while they both served in the Army in Victoria, New South Wales and Queensland.
On 24 February 2016, the accused was charged with offences against the complainant in Queensland. In about mid-1976. The accused was convicted after trial of five counts of carnal knowledge. He was sentenced to three years' imprisonment which was suspended after nine months. The accused was released from custody in about November 2019.
R v O'Neill [2023] NSWDC 122 | Case summary | Zoe
Police in New South Wales did not serve the accused with charges until 21 November 2020. The accused resides in Queensland. He is largely wheelchair-bound and relies on the assistance of his son for most day-to-day living activities. He suffers from numerous serious health conditions, including Parkinson's disease, chronic infection relating to part hip surgery, post‑traumatic stress disorder, sleep apnoea, depression and anxiety. He also suffers from progressive cognitive decline. The accused has suffered several fractures in recent years, including as recently as May 2022, at which time he was hospitalised. His prognosis is poor. He has a very limited life expectancy.
The accused's trial was listed to commence at the Albury District Court on 17 October 2022. An application to stay the proceedings was before me on 30 September 2022. Mr Buchen SC appeared on behalf of the accused. Essentially, the grounds that were argued were that to permit the trial to continue would be out of accord with common humanity. The proceedings would be unfairly and unjustifiably oppressive and the trial would be unfair.
During the course of the application I heard evidence from Dr David Williams, a neurologist. He was not cross‑examined. I also heard evidence from Dr Furst, a psychiatrist. He was not cross‑examined. Mr Buchen provided written submissions and spoke orally on the motion. A large number of medical reports were tendered on behalf of the accused. At the completion of Mr Buchen's submissions, the Crown sought an adjournment to seek a report from an expert. Dr Furst had provided a supplementary report dated 27 September 2022 indicating that the accused was unfit to stand trial. I vacated the trial date and adjourned the stay application to enable the Crown to seek an expert opinion.
Dr Furst, in his supplementary report, was of the opinion that the accused was unfit and was not going to be fit for the next 12 months. The matter was adjourned to 9 December 2022 for mention. Further adjournments have occurred to enable the Crown to obtain a report from Professor Greenberg, forensic psychiatrist. The report was obtained on 1 March 2023.
The matter is to be dealt with pursuant to the Mental Health and Cognitive Impairment (Forensic Provisions) Act 2020 which prescribes criminal procedures for the Supreme and District Court for persons affected by mental health and cognitive impairments. The Act replaced the Mental Health (Forensic Provisions) Act 1990 and commenced on 27 March 2021. The Court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence as soon as practicable; s 42. The inquiry procedures are set out in s 44 and include the following:
1. the determination by judge alone: s 44(1).
2. the defendant is to be represented by an Australian legal practitioner unless ordered otherwise: s 44(2).
3. the inquiry is not to be conducted in an adversarial manner: s 44(3).
4. onus of proof does not rest on any particular party: s 44(4).
5. the Court is to consider modification of the trial process or assistance provided to facilitate understanding and effective participation in the trial, the length and complexity of the trial and representation of the defendant: s 44(5).
6. a determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied: s 44(6).
Mr O'Neill is represented by an Australian legal practitioner. Section 36 now creates an explicit statutory test for fitness based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230.
Section 36(1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment, they cannot do one or more of the following:
1. understand the offence the subject of the proceedings,
2. plead to the charge,
3. exercise the right to challenge jurors,
4. understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
5. follow the course of the proceedings so as to understand,
6. understand the substantial effect of any evidence given against the person,
7. make a defence or answer to the charge,
8. understand the substantial effect of any evidence given against the person,
9. make a defence or answer to the charge,
10. instruct the person's legal representatives so as to mount a defence and provide the person's version of the facts to that legal representative and to the Court if necessary,
11. decide whether the defence that person will rely on and make that decision known to the person's legal representative and the Court.
The list is not exhaustive and does not limit the grounds on which a Court may consider a person to be unfit to be tried for an offence: s 36(2).
[3]
THE EXPERT EVIDENCE
Dr Furst, forensic psychiatrist, provided a supplementary report dated 27 September 2022. He had the opportunity to assess further medical opinion. He retracted his original opinion that the accused was fit to be tried. It was his opinion at p 5 of his report that:
"Mr O'Neill has difficulties with memory, attention, processing of information and word finding difficulties. His capacity for affective reflection and expression is impaired by his Parkinson's disease and his depression. Put together, his cognitive deficits, psychiatric symptoms and signs and his diminished range of expression could easily make Mr O'Neill falter, impairing his capacity for clear and reflective communication and will probably also make him appear hesitant, illogical and unreliable to a jury, not necessarily based on any factual evidence he gives but based on his appearance, lack of fluency and communication style.
Such cognitive, psychiatric and neurological impairment would most likely be misinterpreted by a lay person sitting on a jury, having no knowledge of the accused or his underlying deficits, as a juror essentially needs to work out whether they believe the accused or the complainant in relation to the allegations before the Court. Therefore, there is a high risk of unfair bias towards the accused. Additionally, there are serious concerns about the capacity of Mr O'Neill to survive a criminal trial in Albury if a trial was to proceed.
Based on my assessment on Dr Williams' and letters/reports of Dr Dwyer, I am now of the opinion that Mr O'Neill is unfit to be tried and is not physically able to participate in a Court hearing either. His risk of suicide would also substantially increase if he was forced to face trial. I now concur with Dr Dwyer in regarding Mr O'Neill to be permanently unfit to be tried."
Professor Greenberg, in a comprehensive report dated 1 March 2023, said, at p 25:
"Therefore, in summary, from a psychiatric perspective, in my opinion and on balance, Mr O'Neill currently has the following psychiatric conditions (mental health impairment as defined in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020) and a cognitive impairment (as defined in s 5 of the Act):
(1) Mild neurocognitive disorder,
(2) Chronic adjustment disorder with depressed and anxious mood,
(3) Post-traumatic stress disorder in partial remission."
He assessed Mr O'Neill with regard to s 36 of the Act. At p 29 of his report, he was of the opinion that, in regard to s 36 criteria and s 44(5) inquiry procedures, on balance of probability, Mr O'Neill is currently unfit to stand trial at this time. He was also of the opinion:
"The fundamental cognitive deficits due to his Parkinson's disease, which is progressive and more permanent in nature and unlikely to change the fundamental underlying impairment. Therefore I am of the view that, on balance, looking at the combination of all his physical, psychiatric and psychological impairments, and even with modifications or special assistance provided to facilitate the defendant's understanding and effective participation in the trial, he is unlikely to attain a threshold of fitness to stand trial in the near future and unlikely to render him fit to stand trial within the term of the next 12 months."
[4]
DETERMINATION
Having considered the expert evidence and the application of the statutory test for fitness as set out in s 36, I am satisfied on the balance of probabilities that Mr O'Neill is not fit to stand trial. I am satisfied that, on balance, he will not become fit for trial within 12 months.
Having found the accused unfit to be tried and satisfied that he will not, during the next 12 months, become fit to be tried for the offences, he is to be dealt with under div 3 of the Act: s 48(1). Division 3 of the Act sets out the procedures for special hearings.
Pursuant to s 53(2), the Court must obtain advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offences. A special hearing pursuant to div 3 cannot be conducted until the Director's advice is received. Accordingly, the proceedings will be adjourned for one month to enable the Director to provide her advice. The matter is adjourned to Thursday 27 April 2023. Mr O'Neill is not required to appear if legally represented.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 April 2023