Director of Public Prosecutions v Carson (a pseudonym)
[2022] VCC 595
•1 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVIN CARSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 & 15 February 2022 | |
DATE OF RULING: | 1 March 2022 | |
CASE MAY BE CITED AS: | DPP v Carson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 595 | |
RULING
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Subject:CRIMINAL LAW — APPLICATION FOR PERMANENT STAY
Catchwords: Application for permanent stay — Applicant’s very advanced age and ill health — Extreme delay since the alleged offending — Delay of 51 years — Lengthy procedural history — Four trials previously commenced — Three trials resulting in a discharge without verdicts — Fourth resulting in convictions and a term of imprisonment — Subsequent quashing of convictions — Public interest in prosecuting serious allegations of institutional child sexual abuse — Public interest in receiving a fair trial — Rare and exceptional circumstances made out — Cognitive impairment established — Ability to conduct a trial and be an active participant significantly impaired — Application granted
Cases Cited:R v Hakim (1989) 41 A Crim R 372; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; [2015] VSCA 2; Carson (a pseudonym) v The Queen [2019] VSCA 4; Carson (a pseudonym) v The Queen [2019] VSCA 317; The Queen v Edwards (2009) 83 ALJR 717; 255 ALR 399; [2009] HCA 20; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Subramaniam v The Queen (2004) 79 ALJR 116; 211 ALR 1; [2004] HCA 51; McGee (a pseudonym) v The Queen [2020] VSCA 146; Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529; [2021] VSCA 12; R v Littler (2001) 120 A Crim R 512; [2001] NSW CCA 173; Pound v R (2019) 280 A Crim R 109; [2019] VSCA 279; McDonald (a pseudonym)v R (2016) 263 A Crim R 356; [2016] VSCA 304; Morton (a pseudonym v R) (2020) 281 A Crim R 291; [2020] VSCA 49
Ruling: Application granted, Indictment H10044840.D.1 permanently stayed.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Nibbs | Solicitor for the Office of Public Prosecutions |
| For the Applicant | Mr D Gurvich QC with Mr T Bourbon | Williams Winter Solicitors |
HIS HONOUR:
1Davin Carson[1] is charged on indictment H10044840.D.1 (“D.1”) with five charges of common assault, two charges of indecent assault upon a male, six charges of buggery with a person under the age of 14 years, and two charges of buggery. The offences are alleged to have occurred between 1 January 1971 and 30 April 1972. Charges 1 to 9 on indictment D.1 concern the complainant “GC”, and Charges 10 to 15 concern the complainant “NM”. Mr Carson has pleaded not guilty to each of the charges. His trial on indictment D.1 is due to commence on 9 March 2022.
[1] A pseudonym.
2This is an application for a permanent stay of all charges on the indictment.
3An application for a permanent stay in respect of this indictment, and three others, was made before his Honour Judge Meredith on 21 May 2021.[2] On that occasion, his Honour granted a permanent stay on two of the four indictments, but did not do so on the other two indictments, D.1 and E.
[2] DPP v Carson (a pseudonym) (County Court of Victoria, Judge Meredith, 1 June 2021) (‘Judge Meredith Ruling’).
4Mr Gurvich QC, who appeared with Mr T Bourbon on behalf of the applicant, submitted that since his Honour Judge Meredith’s rulings there has been significant cognitive and physical deterioration in the applicant’s state of health.
5Mr Gurvich relied on the following matters in combination, as requiring a permanent stay:
(i)the applicant’s very advanced age;
(ii)the extreme delay since the alleged offending;
(iii)the applicant’s poor physical health;
(iv)the applicant’s cognitive deficits;
(v)the fact that four trials have previously been commenced; and
(vi)the applicant’s time in custody and the subsequent quashing of his convictions by the Court of Appeal in 2019.
6Mr Gurvich submitted that in all the circumstances, it would offend common humanity to require the applicant to again stand trial,[3] notwithstanding the seriousness of the charges and the public interest in having the charges heard and determined. Mr Gurvich submitted that the cumulative impact of factors make this an extreme case. He submitted that the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
[3]Relying on R v Hakim (1989) 41 A Crim R 372 (‘Hakim’).
7In the alternative, and in the event that a permanent stay is refused, Mr Gurvich submitted that I should adjourn the trial for several months because of the risk of death or serious injury to the applicant arising from the COVID-19 pandemic.
8Mr Nibbs, who appeared on behalf of the Director of Public Prosecutions, opposed the application for a permanent stay and opposed any further adjournment of the applicant’s trial on this indictment.
9Mr Nibbs relied on written submissions dated 18 May 2021 filed in respect to the stay application before Judge Meredith, which he supplemented with oral submissions before me.
10Mr Nibbs submitted, consistent with a long line of authority, that a permanent stay will only be granted in circumstances that are “rare” or “exceptional.”[4] Furthermore, there is a high degree of public interest in the prosecution of the charges on indictment D.1, notwithstanding the significant delay.
[4]Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; [2015] VSCA 2 [38] (‘Hermanus’).
11The prosecution written submissions state that “unlike many cases with significant delay, the defence does not rely on forensic disadvantage due to unavailability of witnesses or evidence.” Furthermore, with regard to the applicant’s age and ill health, it was submitted that steps can be taken by the court to accommodate the applicant’s hearing difficulties, increasing fatigue and other health issues.
Circumstances of alleged offending
12I set out a very brief summary of the allegations against the applicant.
13In 1971, the applicant was the principal of a boarding school in regional Victoria. The complainants “GC” and “NM” were aged 10 or 11 and 13 or 14 respectively, during that year.
14In relation to the complainant GC, it is alleged that:
(i)Within a few months of commencing at the school, GC was directed to attend at the applicant’s office. Once there, he was told to pull down his pants and underwear and bend over a desk. He was then caned three times on his buttocks (charge 1 – common law assault). The applicant then rubbed his hand back and forth across the complainant’s bottom (charge 2 – indecent assault on a male) before inserting his penis into GC’s anus (charge 3 – buggery with a person under 14).
(ii)On another occasion, the complainant was again told to attend the principal’s office. Again, he was told to pull down his pants and underwear and directed to bend over the desk. The applicant then inserted his penis into GC’s anus (charge 4 – buggery with a person under 14).
(iii)On another occasion, the complainant was caned by the applicant on each hand a number of times (Charge 5 – common law assault) in response to GC having written a letter to his parents complaining of his treatment. That letter was intercepted by the applicant.
(iv)On another occasion, GC was caned by the applicant 12 times to his hands (charge 6 – common law assault). A week later the applicant caned GC 12 times to his bare bottom (charge 7 – common assault).
(v)On another occasion, after having caned GC 12 times to his bare bottom, the applicant is alleged to have then inserted his penis into GC’s anus (charge 8 – buggery with a person under 14).
(vi)On another occasion the complainant was locked in a bedroom with the applicant and another priest. The applicant inserted his penis into GC’s anus (charge 9 – buggery with a person under 14).
(vii)Finally, inside the applicant’s office, the applicant repeatedly struck GC with a cane when GC refused to comply with the applicant’s demands to pull down his pants and bend over (charge 10 – common law assault).
15GC was contacted by police and made a statement on 5 October 2015.
16With regard to the complainant NM, it is alleged that:
(i)NM was directed to attend at the applicant’s office. He was told he had been caught smoking. The applicant hit him with a cane twice to each hand (charge 11 – common law assault).
(ii)On another occasion, NM was woken at night by his dormitory master and directed to go to the applicant’s office. The applicant made a number of allegations against the complainant and then masturbated and ejaculated onto NM (charge 12 – indecent assault on a male).
(iii)A number of weeks later, NM was again directed to attend the applicant’s office at night. He was taken there by one of the Brothers. He was forced to the floor by the applicant, where NM unsuccessfully struggled against the applicant who anally penetrated him with his penis (charge 13 – buggery with a person under 14 or in the alternative charge 14 - buggery).
(iv)On another occasion the applicant made NM masturbate the applicant’s penis (charge 15 – indecent assault on a male).
(v)On the final occasion, NM was called to the applicant’s office at night. The applicant inserted his penis into NM’s anus (charge 16 – buggery with a person under 14 or in the alternative charge 17 – buggery).
17NM reported the matters to police in February 2018. He had earlier disclosed them to his mother, in about 1971, but was not believed, and later to his own family in 2008.
Procedural History
18The charges on what is now indictment D.1 have had a lengthy procedural history.
19On or about 17 August 2018, the applicant was committed to stand trial. He made an application for a permanent stay which was refused by his Honour Judge Ryan, on 18 December 2018. On 25 January 2019, an interlocutory appeal relating to that permanent stay application was refused.[5] At that time the charges against the applicant involved 20 complainants. The application was based on “the extremely long delay and associated forensic disadvantage in challenging the evidence of the complainants, and the applicant’s ill health.”
[5]Carson (a pseudonym) v The Queen [2019] VSCA 4 (‘Carson (interlocutory appeal)’).
20In the joint judgment of Maxwell P and T Forrest JA, their Honours stated –
In cases such as the present, where what is alleged is institutional child sexual abuse of a very serious kind, the public interest was a consideration to which the judge was entitled to give very considerable weight. Moreover, long delay in complaint is a recognised concomitant of sexual abuse of this kind.[6] Weighing the public interest requires that proper regard be had to the interests of putative victims of such abuse. In a case like this, when the very delay relied on by the accused may be the direct result of the conduct alleged, it is entirely appropriate that the matters relied on in support of the stay application are subjected to the kind of rigorous scrutiny exemplified by his Honour’s ruling.[7]
[6] Royal Commission into Institutional Responses to Child Sexual Abuse, (Final Report, December 2017) vol 4, 9–17, ch 4.
[7] Carson (interlocutory appeal) (n 4) [23].
21Between 11 and 27 February 2019 a jury was empanelled and a trial undertaken of the allegations comprising what was then indictment A. Indictment A later became indictments D.1 and E. There were then three complainants: GC, NM and BP. The jury was discharged on application of the defence because of the high level of distress and the number of breaks required by BP in giving his evidence. The prosecution then removed BP from the indictment and proceeded with the charges relevant to complainants GC and NM. The complainants’ evidence had been recorded prior to the jury discharge.
22Between 12 and 13 March 2019, a second jury was empanelled. The jury was discharged on the second day because a juror expressed discomfort with the subject matter of the trial.
23Between 14 and 26 March 2019, a third jury was empanelled to hear the allegations but was ultimately discharged.
24Between 29 July and 22 August 2019 a jury was empanelled and following trial, returned verdicts of guilty on all charges on indictment D.1. The bulk of the prosecution evidence had by that stage been recorded, and the prosecution case proceeded with only the informant being called. The applicant gave evidence in the defence case. All evidence of both the prosecution and defence was recorded, and the recordings are available. On 20 September 2019, the trial judge, his Honour Judge Ryan, imposed a total effective sentence of 14½ years’ imprisonment with a non-parole period of 10 years’. The applicant was then 92 years of age.
25On 20 December 2019, the Court of Appeal set aside the convictions because of an irregularity in the trial process and directed a retrial.[8] The applicant was released on bail, having served approximately four months of the sentence.
[8]Carson (a pseudonym) v The Queen [2019] VSCA 317 (‘Carson (conviction appeal)’).
26The charges were listed to commence for a fifth time on 20 April 2020 before his Honour Judge Ryan. The trial was vacated, however, due to the COVID-19 pandemic and the suspension of jury trials in the County Court from April 2020. It was also listed to begin for a sixth time in October 2021 but was again vacated because of the pandemic.
27As earlier mentioned, on 21 May 2021 a permanent stay application was heard by his Honour, Judge Meredith. The application related to four indictments, which for ease I shall refer to as indictments Nos H10004480 B, C, D.1 and E. His Honour found that the most egregious offending was that alleged in Indictment E. Indictment D.1 was next most serious. Indictment B involved indecent assaults and common assaults on nine separate complainants. Indictment C involved common assaults on eight separate complainants. His Honour permanently stayed indictments B and C.
28At paragraph [82] of his ruling, his Honour stated:
“In regard to Indictment D.1, I would not permanently stay this proceeding. Given that it has been recorded in its entirety, and a transcript of the proceedings is available as well, trial preparation and the accused’s participation in the trial process are able to be augmented. The retrial of these matters can take place at the end of October of this year before me. Suitable modifications can be made to facilitate the frailty of the accused as well as ensuring that he can adequately participate in the proceedings. The charges forming Indictment D.1 are serious examples of institutional sexual abuse and there is a high public interest in them being litigated.”
29The medical evidence before his Honour related to the applicant’s physical frailties. His Honour did not have the benefit of evidence from neuropsychologist, Dr Jennifer McDowell, to which I will refer later in these reasons. However, Judge Meredith noted the following:
“Whilst the accused is elderly, frail, and in failing health, there is no clinical testing in regard to any memory or concentration decline that has been placed before me. The opinions are impressionistic and of necessity somewhat vague and imprecise. His hearing loss is at around the same level as that of around 2016, and his other maladies are all able to be managed.”[9]
[9]Judge Meredith Ruling (n 1) [70].
30His Honour also noted that none of the materials placed before him expressed an opinion that the applicant was incapable of being placed on trial.[10]
[10]Ibid [72].
Legal principles
31In order to stay permanently criminal proceedings, the court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
32In The Queen v Edwards,[11] the High Court referred to its earlier decision in Walton v Gardiner[12] in the following terms:
“... whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness”, or whether the “continuation of the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to constitute an abuse of process.”[13]
[11](2009) 83 ALJR 717; 255 ALR 399; [2009] HCA 20 (‘Edwards’).
[12](1993) 177 CLR 378; [1993] HCA 77.
[13]Edwards (n 10) 720 [23].
33In Subramaniam v The Queen,[14] the court stated:
“It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner , the inherent power of a superior court to stay proceedings on the ground of ‘abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.’ ”[15]
[14](2004) 79 ALJR 116; 211 ALR 1; [2004] HCA 51.
[15] Ibid [26].
34The court went on to state that:
“Fairness or unfairness has been said to defy ‘analytical definition’ and to ‘involve an undesirably, but unavoidably, large content of essentially intuitive judgment’ ”[16]
[16] Ibid [27].
35The decision whether or not to grant a stay is discretionary. However, as was stated by the Court of Appeal in McGee (a pseudonym) v The Queen,[17] the test for a grant of a permanent stay is “exceptionally stringent”.[18]
[17][2020] VSCA 146 (‘McGee’).
[18]Ibid, [137].
36In Hermanus v The Queen[19] Priest JA, with whom Maxwell P agreed, stated:
Authority establishes that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. A permanent stay will only be granted in circumstances which are rare or exceptional.[20]
[19] Hermanus (n 3).
[20] Ibid [39].
37In McGee the court stated:
In order to justify the extreme step of staying a prosecution, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial would necessarily be unfair. Accordingly, any conviction would bring the administration of justice into disrepute.[21]
[21] McGee (n 16) [138].
38In McGee, the period of time that would have elapsed between the commission of the alleged offences and trial was approximately 55 years. The court considered such a period would “be at the outer end of what could credibly be regarded as acceptable in any criminal trial”.[22]
[22]Ibid [149].
39In Lucciano (a pseudonym) v The Queen,[23] where the delay was some 56-57 years before trial, the court expressed its “disquiet at the apparently increasing frequency with which cases involving delays in the order of 40-60 years are coming before the court”.[24] The court acknowledged, however, that some trials may be fairly held in such circumstances, and the responsibility for deciding whether the proceedings should be maintained lies, in the first instance, with the executive. Further, that in deciding whether to grant a permanent stay, it was relevant to take account of the relative seriousness of the charges.[25]
[23](2021) 287 A Crim R 529; [2021] VSCA 12 (‘Lucciano’).
[24]Ibid [48].
[25]Ibid [48].
40In Hakim,[26] Kirby P stated:
It was properly conceded that the health (particularly the mental health) of a person facing a serious criminal charge was a matter properly to be taken into account in deciding whether to grant a permanent stay of the further prosecution of the charge.[27]
[26] Hakim (n 2).
[27] Ibid 375.
Evidence
41A number of reports were tendered by the applicant in support of his application. I also heard evidence from Dr Jennifer McDowall and Dr Eric Seal, consultant physician and geriatrician.
42Exhibits D1 and D9 are reports of Dr McDowall dated 30 September 2021 and 27 July 2018. Dr McDowall’s first report was not relied on in the application before Judge Meredith. Her second report was prepared after his Honour refused the permanent stay application on this indictment.
43In her first report (Exhibit D9), Dr McDowall stated:
“… there was no evidence on assessment to suggest that Mr Carson was suffering from any form of cognitive disability. ... I am of the opinion that there is no foreseeable cognitive impediment to his ability to withstand a contested trial of at least eight weeks’ duration.”[28]
[28]Exhibit D9, 6.
44Dr McDowall further stated:
“He does not have a cognitive disability. Crucial to decision making capacity, he does not demonstrate any impairment in his memory or executive functioning. There is no evidence that he has difficulty reasoning through complex situations …”,[29] and
“His memory and executive functioning were intact. His ability to simultaneously hold and mentally manipulate information in working memory is intact. He can divide his attention between competing demands. He could adequately sustain his attention for up to two and a half hours without a break during assessment. His ability to reason through complex situations is intact.”[30]
[29] Ibid 8.
[30]Ibid.
45In her more recent report (Exhibit D1), Dr McDowall stated that when she assessed the applicant in 2018 his neuropsychological test performances were within the expected limits for his age and level of education, across all cognitive domains. There was no evidence to suggest an emerging dementia or any other cognitive disability.
46However, following assessment on 30 September 2021, Dr McDowall was of the opinion there had been a significant decline in the applicant’s cognitive functioning compared to her initial assessment. She reported:
“Mr Carson’s attention is impaired. He has lapses in his attention. He is overloaded when presented with complex and lengthy information. The amount of information he can take in at any one time is variable. This variability cannot be predicted. He has difficulty sustaining his attention to the point that his alertness level drops, and he appears to be dozing.
His speed of thinking is much slower than when I first assessed him. He is significantly slower to complete novel problem-solving tasks. It is far more effortful for him to maintain his engagement in tasks. Because of his impaired attention and slowed speed of information processing, his memory capacity is reduced. His ability to retain information over time is likewise reduced.
Mr Carson fatigues easily. This fatigue will exacerbate his existing difficulties.
Mr Carson’s self-reported complaints are explained by his cognitive impairment.
Mr Carson has a number of risk factors for cerebrovascular disease. It is reported that there are cerebrovascular changes on neuroimaging. Given this history, together with the nature of Mr Carson’s cognitive impairment, it seems most likely that his current deficits are a result of cerebrovascular disease. His chronic medical illnesses may also be contributing.”[31]
[31]Exhibit D1, 5–6.
47Dr McDowall considered that the changes in the applicant’s cognitive functioning could not be fully accounted for by his age. Rather, it seemed most likely that he has vascular-related cognitive impairment.
48In Dr McDowell’s opinion, the applicant does not now have the cognitive capacity to withstand a lengthy contested trial. Furthermore, because of his demonstrable attentional problems, it is Dr McDowall’s belief that he does not have the cognitive capacity to focus and concentrate during each day and every consecutive day of a trial. His ability to give evidence-in-chief and to respond to cross-examination will, in her opinion, be compromised by his impaired attention. Dr McDowell stated that he will struggle to sustain his attention. He will be overwhelmed by complex and lengthy information. When overloaded, his ability to learn and retain information will be compromised. This will also significantly impact upon his ability to instruct his legal team on a continuing basis.
49Dr McDowall was also of the opinion that the applicant does not have the endurance to respond to cross-examination. He has difficulty maintaining his mental alertness. Fatigue will exacerbate his existing cognitive difficulties.
50Before me, Mr Gurvich asked Dr McDowell to explain what she meant, in her second report, that the amount of information the applicant could take in was “unreliable”. Dr McDowall stated that “Mr Carson’s attention and concentration is now quite variable”[32] and that when his attention and concentration were low, to the point where at times he seemed to be dozing, because of his variable attention, his ability to take on new information was unreliable. Furthermore, the applicant can be overloaded when he is presented with lengthy information and that cannot be predicted, but it was certainly very evident.
[32]Transcript of Proceedings, DPP v Carson (County Court of Victoria, Judge Georgiou, 14 February 2022) 8, 29 (‘Transcript’).
51Dr McDowall administered a battery of tests in both her assessments. In her most recent testing, using the Wechsler Memory Scale, Dr McDowall tested Mr Carson using two prose passages. As a result of that testing, she found that the applicant’s delayed retrieval of information was unreliable. There had been, in her opinion, a statistically significant decline in the areas of attention and concentration.
52Dr McDowall also gave evidence that another aspect of the applicant’s cognitive profile that has changed significantly from his first assessment is that he is now slower to process information. That was evident in his presentation and testing. Dr McDowell stated:
“So in terms of being able to maintain his attention for a sustained period of time, to process that information quickly, to take it in, to be able to learn that information and retain that information, given his performances on testing, I would have significant concerns.”[33]
[33]Ibid, 13.
53Another area in which the applicant’s cognition was impaired was his ability to solve novel problems. Dr McDowall explained that the applicant’s ability to take information on board, process it, manipulate it in the way he needed to, and then solve novel problems, was impaired. In the criminal trial process, Dr McDowall was concerned that any response the applicant would give would be unreliable.[34]
[34]Ibid, 14.
54Dr McDowall said that it “certainly is likely that he is presenting with a vascular related cognitive impairment”.[35] There have been vascular changes in his brain, evident on neuroimaging, that have then caused these changes in his cognition.
[35]Ibid, 15.
55As to the applicant’s ability to engage in a criminal trial of an estimated duration of 20 days, with modifications, Dr McDowall stated that there will be fluctuations in his ability to engage in the process. There will be fluctuations in his ability to retain information day to day and over consecutive days. She did not think the applicant could reliably retain information across a lengthy trial.[36]
[36]Ibid, 18.
56In the context of the trial, Dr McDowall stated—
“We can’t have a formula where he says, for example, if he listens to an hour’s worth of testimony and then has a break, that then he can go on and process the rest of it adequately. It’s unreliable and his attention and concentration and, therefore, his ability to learn or take on information and process that information is fluctuating, in a way that we can’t predict across sessions or days.”[37]
[37]Ibid, 27.
57Dr McDowall also stated that when people have a slowed speed of information processing that is when they start to make errors.
58Under cross-examination, Dr McDowall stated that she was not asked to nor did she test the applicant as to his memory of events learned earlier in his life, nor was he asked about his knowledge or ability to recite information from the earlier trial in 2019.
59As to his ability to deal with examination-in-chief or cross-examination, Dr McDowall stated it would be absolutely important to watch for signs of fatigue, but apart from those moments where he may be sleepy or nodding off, it was very difficult to see when he was in an “attentional trough”. An area of concern is how well he is processing the information and that may not be evident immediately.
60In response to a question from me, Dr McDowall stated that the amount of information and the quality of the information the applicant is able to encode and learn, and then be able to retain, fluctuated across her assessment. When his attention was dipping, and going through one of those attentional troughs, he was not able to take on any new information whatsoever. Therefore, he had no retention or recollection of that information following a delay.
61Dr McDowall stated that a person’s attention is the foundation of all the other cognitive abilities such as information processing, executive functioning, planning, and problem solving. If the foundational block is unreliable or not working the way it should, all other processes that come on top of that are also unstable.
62Exhibit D2 is a report of Dr Eric Seal dated 23 March 2021. As stated, Dr Seal is a physician and geriatrician working at Royal Melbourne and St Vincent’s public hospitals.
63He initially assessed the applicant on 3 April 2018, and then again on 2 October 2018. For the purpose of his report, he reviewed the applicant on 9 March 2021. He last assessed the applicant on 12 February 2022.
64At his earlier reviews, Dr Seal considered the applicant was “good for a person of 90 years.” He had “a physical energy and a strong desire to go to court to defend himself.” However, when reviewed on 9 March 2021, the applicant looked like a very frail, tired old man. He was snoozing in the waiting room. With regard to his frailty, Dr Seal noted there had been a number of admissions to St Vincent’s and St George’s Hospitals related to falls. Dr Seal considered that the applicant would not be able, physically or cognitively, to endure long periods in Court. He did not then think the applicant had the stamina to endure the rigours of a criminal trial.
65On his most recent assessment, he did not think the applicant was significantly worse than on the previous assessment. Dr Seal was aware of the numerous medical conditions the applicant suffers. In 2018, he administered the Montreal Cognitive Assessment Test which confirmed then the applicant had cognitive deficits. He said he would still agree with that assessment which was diagnosed as mild cognitive disease of a vascular nature, that is, vascular cognitive impairment. Dr Seal was aware of Dr McDowall’s report dated 8 October 2021 and considered the opinions she expressed consistent with his own observations. Executive functioning, he said, is one of the things impaired in people with vascular cognitive impairment – they lose the ability to initiate things, they become apathetic, they slow down and their cognition is slower.
66Asked whether he could express any opinion on the applicant’s life expectancy, Dr Seal stated that when he saw him in 2021, he thought his life expectancy was limited and was “quite impressed” to see that he is still with us. Dr Seal stated that if he had to give a “guestimate”, his feeling is that the applicant’s life expectancy would be 12 months, possibly less, but acknowledged that he could not give an accurate number as to one or two years. He stated that lack of strength is a sign of severe physical frailty and persons with such frailty generally have a lower life expectancy. Dr Seal stated that if any of the applicant’s co-morbid conditions become more active, that would result in a significant decline and a steep descent in his physical state. Any insults to his system, he said, “would actually topple him.” Dr Seal considered that the applicant was probably too frail to endure a hearing over a prolonged period of time, requiring the amount of concentration needed to assess the information and the evidence that is given before him. He considered it would probably be too overwhelming for the applicant.[38] Dr Seal noted the applicant’s tendency to nod off at frequent times during the day.
[38]Ibid, 60.
67With regard to viewing the recordings of evidence previously given, Dr Seal did not think that the applicant would be able to assimilate all of the information. However, with regard to his capacity to give evidence, Dr Seal stated that provided he could understand questions he thought the applicant would be very happy to answer questions. From a physical perspective, if it was a prolonged session of cross-examination, he would probably struggle. Fatigue, he thought, would be the major element in him being examined. He could not say whether the applicant’s memory of events that happened a long time ago would be reasonable.
68With regard to the danger that COVID‑19 presents to Mr Carson, Dr Seal stated he would be concerned about anything that topples the applicant’s homeostasis, which would in turn cause a steep decline in his health.
69Under cross-examination, Dr Seal understood that during the trial, there would be two or three sessions of 45 minutes. He did not think that the applicant was physically up to anything more than one session. He said he would not be surprised if the applicant was not able to focus for the whole 45 minutes.
70Exhibit D6 is the discharge summary of St Vincent’s Hospital. Included in the summary, at p. 6, is the following entry – “Clinical Indications: 93 year old male person with recurrent unwitnessed falls, functional and cognitive decline and delirium.” The summary relates to a hospitalisation between 3 January and 21 January 2021.
71Exhibit D3 is a report of Dr Menezes dated 28 January 2022. Since taking over the care of the applicant on 22 March 2019, he has seen him on 76 occasions. Dr Menezes states that Mr Carson has deteriorated over that time. The applicant suffers from the following conditions:
(i)prostate cancer with palliative approach, currently on anti-androgen chemotherapy;
(ii)pulmonary embolism and atrial fibrillation with lifelong anticoagulant medication;
(iii)type 2 diabetes mellitus requiring daily medication;
(iv)constipation requiring regular medication;
(v)poor balance and mobility requiring mobility aids and assistance at home;
(vi)hearing impairment requiring hearing aids;
(vii)chronic kidney disease requiring monitoring;
(viii)multiple skin cancers requiring topical chemotherapy, cryotherapy and skin surgery;
(ix)mild cognitive impairment diagnosed by geriatrician Dr Zoe Tuer in 2020 with vascular degenerative changes on brain imaging;
(x)back pain from kyphosis (stooped posture);
(xi)presumptive diagnosis in 2020 of ischaemic heart disease/cardiac failure by cardiologist, Dr Andrew Burns;
(xii)caecal angiodysplasia;
(xiii)anaemia;
(xiv)severely prolonged healing after minor leg wounds and minor falls requiring multiple hospital admissions, skin graft surgeries and twice weekly dressings for about six months in 2020-21; development of drug-resistant bacteria and remains at risk for further complex leg wounds; and
(xv)osteoporosis.
72Dr Menezes was aware of Dr McDowall’s neuropsychological assessment and agrees with her findings. He has noted that the applicant dozed off during surgery and multiple times during consultations, sometimes even after brief periods.
73Dr Menezes stated that none of the conditions would strictly preclude the applicant from undergoing a trial on health grounds, however, there were associated risks to his physical health. More importantly, however, Dr Menezes considered that the applicant’s cognitive impairments, difficulty sitting up straight or standing due to spinal degeneration and hearing impairments would limit his ability to follow and make useful contributions to the trial.
74Exhibit D5 is a report of Associate Professor Burns dated 2 February 2021. Professor Burns saw the applicant on 29 July 2020 and 2 February 2021. The applicant reported he continues to experience left-sided chest pain, and at the age of 93, Professor Burns deemed it inappropriate to undertake further invasive investigation given his multiple comorbidities. He treats him on the basis of a presumed diagnosis of angina. Professor Burns stated the applicant’s overall fitness has deteriorated since he was last seen in July 2020. He has suffered falls and required a number of hospital admissions over the previous 12 months. This is in keeping with his overall declining health. Professor Burns stated it was impossible to estimate his life expectancy.
75Exhibit D 7 is a report dated April 2021 from Mary Moschatos, audiologist. Hearing tests show he suffers from a moderate to severe sensorineural hearing loss on both sides. He utilises hearing aids but, given the significant nature of his hearing loss, he may still encounter difficulties in hearing speech clearly even with his aids, particularly at a distance of more than one to two metres from the speaker.
Analysis
76The applicant places reliance on what is said to be an unusual combination of factors. I shall deal with each factor in turn.
1. The applicant’s very advanced age and ill health
77The applicant is aged 94, having been born on 18 September 1927.
78At the time the prosecution’s written submissions were prepared, the prosecution was not aware of the matters contained in Dr McDowall’s reports. Nevertheless, those submissions were relied on by Mr Nibbs. Reliance, in particular, was placed on the fact that the trial evidence has been recorded in full and it is the prosecution’s intention at the applicant’s trial to play the recorded evidence of prosecution witnesses.
79Mr Nibbs also submitted that the applicant’s evidence, and that of defence witness Schneider, which has also been recorded, can be replayed to the jury should the applicant choose to go into evidence.
80The prosecution also submitted that the applicant has previously provided instructions to his counsel and would not need to do so, at least to the same extent, at the retrial. Furthermore, a number of arrangements in the running of the trial can be made to accommodate the applicant’s advanced age and ill health. Those arrangements include reduced sitting hours, having numerous breaks throughout the course of a sitting day, allowing time for defence counsel to obtain full instructions before the applicant giving any evidence, the use of a support person to sit with the applicant in the dock, and the use of head phones to assist the applicant with his hearing. It was also submitted that the applicant could appear via Zoom from his place of residence during the trial.
81The prosecution also noted that the applicant participated in four records of interview in relation to all matters. He then demonstrated recall of a wide variety of matters including recalling some complainants (but not others), and gave a detailed and coherent account and robustly denied all the allegations.
82Mr Nibbs accepted that the applicant suffers from serious health concerns. However, he submitted, that there can be greater flexibility in the running of the trial and the applicant’s health needs can be accommodated.
83With regard to the evidence of Drs McDowall and Seal, Mr Nibbs submitted it was important to look at the issue of his fatigue and noted that no testing was done in terms of his recovery from such fatigue. Mr Nibbs stated that there are “triggers” that people can look for to see if the applicant is fatiguing, such as falling asleep and the like. He accepted that it was imperative to be able to identify that situation prior to a more obvious situation such as the applicant falling asleep.
84Mr Nibbs also referred to the fact that the applicant is not unfit to plead. He can instruct his counsel, he said, and has the ability to participate in the trial and make juror challenges as required.
85In reply, Mr Gurvich submitted that since the Court of Appeal’s decision in 2019, refusing the interlocutory appeal, the applicant is further advanced in age and there has been the cognitive decline to which Dr McDowall referred. Mr Gurvich also noted that the applicant’s life expectancy is now measured in months.
86Although the applicant did not rely on any question concerning his fitness to be tried, significant reliance was placed on his cognitive impairment as reported by Dr McDowall. This is a factor that is no longer “impressionistic” as was the case when Judge Meredith made his ruling.
87The applicant’s state of cognition is such that there are grave concerns whether he could actively participate in the trial. Mr Nibbs, correctly in my opinion, acknowledged that the applicant must be an active participant in his trial at all times, notwithstanding the fact that the prosecution evidence has been recorded, as indeed was his evidence given at the last trial.
88Dr McDowall’s opinion as to the applicant’s state of cognitive functioning is unchallenged. It is clear, when regard is had to both her reports there has been a significant change in the applicant’s cognitive state. It was not suggested that the applicant engaged in any deliberate misleading or malingering at the time of his second assessment.
89In R v Littler[39] the 74 year old applicant was facing trial in respect of offences allegedly occurring 38 and 46 years before trial. He was in ill health.
[39] (2001) 120 A Crim R 512; [2001] NSW CCA 173.
90Adams J, with whom the other members of the Court agreed, stated:
“In the result, therefore, the medical evidence dealing with the difficulties faced by the applicant in giving evidence itself is all one way, except as to whether the demonstrated brain damage was a contributing factor. The ability to give evidence coherently and fluently, without substantial hesitation and qualifications, to remember the evidence previously given in the trial by other witnesses as well as one’s own testimony, quickly understand questions asked both in examination-in-chief and cross-examination and formulate responsive and consistent answers are vital to an accused. In all of this, concentration and short term memory are crucial. Juries are quick to see hesitation as playing for time, qualifications as lack of candour, and inconsistencies as proof of fabrication. It is very difficult to dispel the negative impression these factors may create, entirely unfairly though this might be. This will not necessarily mean that the trial will be unfair, let alone that it should be stayed, but, where it results from or is connected with a substantial delay not due to the accused, it must be considered, together with the other substantial prejudicial circumstances to which I have referred, in determining whether a stay ought be granted. These problems are not merely cumulative, but each multiplies the significance of the others.”[40]
[40] Ibid [49].
91In light of Dr McDowall’s findings, I consider that the applicant’s ability to give evidence coherently and fluently, without substantial hesitation and qualification, is significantly impaired. What he will take in by watching the recorded evidence of the prosecution witnesses will vary across time points. His slow speed of processing information will impact on his ability quickly to understand questions asked both in examination-in-chief and cross-examination, should he choose to give evidence, and formulate responsive and consistent answers, should he choose to give evidence. There is the risk, as mentioned by Adams J, that a jury may be quick to see hesitation as playing for time. Should the applicant give evidence, his difficulties will be exacerbated if he has not fully taken in the evidence of other witnesses or indeed his own earlier evidence.
92I have also had regard to the decisions of Pound v R,[41] and McDonald (a pseudonym)v R.[42] The applicant in each case was facing a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. As stated, it is not suggested in the case before me that the applicant is unfit to be tried.
[41](2019) 280 A Crim R 109; [2019] VSCA 279.
[42](2016) 263 A Crim R 356; [2016] VSCA 304.
93It was recognised in McDonald that the interest of the accused cannot be considered without regard to the community’s right to expect that persons charged with criminal offences are brought to trial.[43]
[43]Ibid [12].
94In both those cases the outcome of the special hearing if the applicants were found to have committed the offences, namely, a discharge or supervision order, was relevant to the question of public interest in the prosecution. However, it was not alone determinative of the issue. As stated by Redlich JA and Beale AJA in McDonald:
“… the nature and extent of the applicant’s mental infirmity and its consequences constituted important factors bearing upon the question of unacceptable unfairness.”[44]
[44]Ibid [45].
95Their Honours also considered the reasoning in Littler as being “highly apposite”.[45]
[45]Ibid [47].
96I also have regard to the applicant’s many physical frailties. Most may be accommodated with reduced sitting hours and other arrangements to facilitate the applicant’s physical needs. However, I do not consider, in light of the evidence of Dr McDowell, that it is possible to be aware of all signs of the applicant’s fatigue and inattention.
97Finally, on the issue of age, life expectancy is to a large extent an elusive consideration. So much was alluded to by Dr Seal. However, at the age of 94, with his serious physical and cognitive difficulties, I believe it can be safely inferred that the applicant is well and truly in his final phase of life. The Court in McGee, stated, with respect to the 75 year old applicant before it:
Justice requires that there be weighed in the balance the fact that he is approaching the final phase of his life.[46]
[46]McGee (n 16) [150].
2. The extreme delay since the alleged offending
98I turn now to the delay between the occurrence of the alleged incidents and the trial.
99Mr Gurvich submitted, in effect, that jurisprudence has developed since the earlier decision of Carson in 2019. Whilst the Court of Appeal in Carson[47] considered that the actual prejudice caused to the applicant by reason of the delay was speculative, Mr Gurvich submitted it is not necessary to point to evidence that is lost, but rather there is a presumptive prejudice that exists.
[47]Carson (interlocutory appeal) (n 4).
100The delay in Morton[48] was between 53 and 56 years. At paragraph [133], in the joint judgment of Beach and Kyrou JJA, their Honours stated:
“The extreme nature of the delay heightens the force of both the presumptive and specific prejudice to which it gives rise in the present case.”
[48]Morton (a pseudonym v R) (2020) 281 A Crim R 291; [2020] VSCA 49.
101Their Honours further stated:
“As a matter of common experience, the passage of up to 56 years since the commission of an alleged offence cannot but diminish memory and render unavailable documents and other independent evidence that create a context which assists in the recollection or reconstruction of relevant events. The problem is not only that relevant events cannot be recollected accurately but also that there is no longer any awareness — even of a vague nature — of the existence of previously known events which might be significant in the defence of an accused.”[49]
[49]Ibid [134].
102In Lucciano,[50] in the joint judgment of McLeish, Niall and T Forrest JJA, the Court stated:
“In McGee, the delay was about 55 years. As well as pointing to the presumptive prejudice such a delay involves, both these cases demonstrate that, especially given a delay of such an extraordinary magnitude, it is not necessary for an accused to be able to identify the evidence that has been lost, in order for that loss to bear on the question whether a fair trial can be had. We note that both cases were decided after the trial judge’s ruling in the present case.”
[50]Lucciano (n 22) [46].
103The two cases to which the Court was referring were Morton and McGee. The delay in Lucciano was between 56 and 57 years.
104Mr Gurvich also relied on the fact that in McGee the Court noted that:
“… the period of about 55 years that will have elapsed between the time of the commission of these alleged offences and any trial late next year must surely be at the outer end of what could credibly be regarded as acceptable in any criminal trial.” [51]
[51]McGee (n 16) [149].
105However, it must be acknowledged that the Court in McGee did go on to state:
“The more serious the allegations of historical sexual offending, the less weight should be accorded to what is described as presumptive prejudice. Correspondingly, where the offending is serious but not at the upper end of the scale of offending, considerable weight should be given to the fact that more than 50 years will have elapsed should this matter come to trial.”[52]
[52]Ibid [149].
106It is clear in this case, that the alleged offending is of a very serious nature and the public interest in the prosecution of the applicant is high.
107Furthermore, in Hermanus[53] Priest JA stated:
“ The law contemplates, however, that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage.”
3. The fact that four trials have previously been commenced. The applicant’s time in custody and the quashing of his convictions in 2019.
[53]Hermanus (n 3) [44].
108Mr Gurvich submitted that in the context of the applicant having been arraigned before a jury on four previous occasions, with three trials resulting in a discharge without verdicts having been rendered, and the fourth resulting in convictions and a term of imprisonment, a fifth trial will be burdensome and oppressive.
109Mr Gurvich further relied on the fact that it is not an overwhelming prosecution case and referred to Forrest JA’s comments in Carson[54] that the earlier trial was a “finely balanced” one in which the jury deliberated for 3 ½ days.[55]
[54]Carson (conviction appeal) (n 7).
[55]Ibid [95].
110Mr Gurvich submitted that the continuation of the proceedings, in light of the fact that the applicant has served 3 months and 3 weeks in gaol before the convictions were quashed, would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. This, he submitted, is notwithstanding the public interest in hearing and determining the charges for serious offences. In oral submissions, Mr Gurvich also pointed to the fact that a trial date was fixed to commence on 5 October 2021, it having been confirmed on 5 July 2021, only to be vacated some 10 days before the trial was due to commence because of the COVID‑19 pandemic.
111Mr Gurvich concluded his submissions by submitting that each of the factors have a multiplier effect and, in combination, lead to a point where to try the applicant at this time would not be in accord with common humanity. He acknowledged that there is a high bar before an indictment, on such charges, would be permanently stayed, but, he submitted, the bar has been reached in this case. Furthermore, whilst the charges are very serious, the public interest in their prosecution cannot displace the gross unfairness to the applicant.
Conclusion
112I have given the competing submissions careful consideration. I am very mindful of the serious nature of the allegations made by each complainant. However, in my opinion, the combination of factors relied on by the defence, warrants the grant of a permanent stay of the indictment. I have come to this conclusion largely because of the applicant’s cognitive impairment.
113In arriving at my conclusion I am very much persuaded by the decision of the Court of Criminal Appeal in Littler, particularly the passage of Adams J, to which I earlier referred.
114The evidence of Dr McDowall and Dr Seal is unchallenged and is critical to my conclusion. As earlier mentioned, it is likely the applicant is suffering from cerebrovascular disease or vascular cognitive impairment. Neuropsychological findings show that the applicant now suffers numerous cognitive deficits. His attention is impaired. He becomes overloaded when presented with complex and lengthy information. His thinking speed is slow. His capacity for memory is reduced. His ability to retain information over time is reduced. His ability to give evidence and be cross-examined, in the opinion of Dr McDowell, is compromised.
115Having regard to the medical and neuropsychological evidence, it is unlikely that the applicant will be able to maintain his attention over the course of the proposed proceedings, process the evidence that is played, and later recall it. His ability to give instructions to his counsel is compromised. His ability to give evidence, should he choose to do so, coherently and fluently, without substantial hesitation and qualification; to recall the evidence previously given in the trial by other witnesses as well as his own previous testimony; to understand relatively quickly questions asked both in examination-in-chief and cross-examination, and to formulate responsive and consistent answers; all of which are vital in my opinion, is significantly impaired.
116Importantly, as earlier mentioned, Dr McDowall is of the opinion that the applicant now “does not have the cognitive capacity to withstand a lengthy contested trial or trials”.[56] The estimate placed on this trial is one of 20 days.
[56]Exhibit D1, 6.
117Dr Seal considered that the applicant was not up to anything more than one 45 minute session on any day of the trial.[57] Even then, it was only a hope that the applicant would be able to stay focussed for one session.
[57]Transcript (n 31) 73.
118I have had regard to the fact that the prosecution evidence has been recorded at an earlier trial as, indeed, has the applicant’s. That was a trial at which the applicant was convicted. Mr Nibbs said it was proposed that the prosecution will replay all of the earlier evidence. Mr Gurvich did not suggest that course would be opposed. However, Mr Gurvich did not say or suggest that the applicant was content simply to rely on his earlier evidence previously given.
119It is, I think, clear that a new trial is not simply the replaying of an earlier trial. There are many reasons why the defence may wish to approach a new trial differently, particularly one in which the applicant was previously convicted. The applicant must, as was fairly accepted by the learned prosecutor, be capable of being an active participant in any new trial. With regard to the possibility advanced by the prosecution that the applicant could follow the proceedings from his residence, I do not consider that to be an appropriate option. I accept Mr Gurvich’s submission concerning the importance of the applicant being in the same courtroom when tried by his peers.
120The applicant’s significant physical frailties, his very advanced age, and his very limited life expectancy are also highly relevant considerations. The applicant is, as I earlier mentioned, in the final phase of his life.
121There have been four trials previously commenced, and the applicant served 3 months and 3 weeks in custody before his convictions were quashed in 2019. However, given the seriousness of the allegations, these are matters of slight weight only as to whether a permanent stay should be granted.
122I also have regard to the substantial delay of 51 years which, consistent with authority, must be viewed as being at the outer limits of what “could credibly be regarded as acceptable in any criminal trial.”[58] I want to make it clear, however, that the delay is not the fault of either complainant and I have not overlooked the fact that what is alleged here is institutional child sexual abuse of a very serious kind, and that the public interest in the prosecution of the applicant is indeed high. However, it is also very much in the public interest that those who are prosecuted receive fair trials. Given the applicant’s cognitive deficits, in particular, and how they will impact upon him should there be another trial, I do not consider there are any measures which this court could take to make it possible for the applicant to now receive a fair trial. I also consider, given the applicant’s age, poor state of cognitive and physical health that any trial would be unjustifiably oppressive.
[58]McGee (n 16) [149].
123Accordingly, by reason of the combination of factors relied on by the applicant, I direct that Indictment D.1 be permanently stayed.
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