Kenneth John Pound v The Queen
[2019] VSCA 279
•28 November 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2019 0171
| KENNETH JOHN POUND | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN, PRIEST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 22 October 2019 |
| DATE OF JUDGMENT: | 28 November 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 279 |
| DECISION APPEALED FROM: | DPP v Kenneth Pound (Unreported, County Court of Victoria, Judge Marich, 27 August 2019) |
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CRIMINAL LAW – Interlocutory appeal – Special hearing – Refusal of application for permanent stay of special hearing – Sexual offences against four complainants who were residents of children’s home – Delay in prosecuting alleged offences – Alleged offences occurred more than five decades earlier – Applicant with cognitive deficits and physical frailties – Availability of evidence and witnesses – Whether unacceptable unfairness to the applicant – Leave to appeal granted – Appeal allowed – Indictment permanently stayed – Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 15, 16, 18; Subramaniam v The Queen (2004) 27 ALJR 116, McDonald v The Queen (2016) 263 A Crim R 356, Hermanus (a Pseudonym) v R (2015) 44 VR 335, Bauer (a Pseudonym) v R (2015) 46 VR 382, Green (a Pseudonym) v R [2017] VSCA 277, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M D Phillips with Mr A Pyne | Victoria Legal Aid |
| For the Respondent | Mr B Sonnet | John Cain, Solicitor for Public Prosecutions |
WHELAN JA:
I agree with Emerton JA.
PRIEST JA:
I agree with Emerton JA.
EMERTON JA:
Introduction
The applicant has been charged on indictment with two charges of buggery and eight charges of indecent assault on a male person. On 4 June 2019, he was found by a jury to be unfit to stand trial pursuant to Pt 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’). The trial judge found him likely to remain unfit for the following 12 months. In those circumstances, the Act requires there to be a ‘special hearing’ of the charges on the indictment.
The Act specifies that the purpose of a special hearing is to determine whether, on the evidence available, the accused: (a) is not guilty of the offence; (b) is not guilty of the offence because of mental impairment; or (c) committed the offence charged.[1] The special hearing is to be conducted as nearly as possible as though it were a criminal trial.[2] If the jury finds that the accused committed the offence charged,[3] this constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates. However, it constitutes a bar to further prosecution in respect of the same circumstances.[4] A finding that the accused committed the offence charged[5] must result in one of two outcomes: a declaration that the person is liable to supervision under the Act or an order that he or she be released unconditionally.[6]
[1]Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 15 (‘Act’).
[2]Ibid s 16(1).
[3]Or an offence available as an alternative.
[4]Act s 18(3).
[5]Or an offence available as an alternative.
[6]Act s 18(4).
On 18 June 2019, the applicant applied for a permanent stay of the special hearing. On 27 August 2019, the trial judge refused his application and gave detailed written reasons for her decision.[7]
[7]DPP v Kenneth Pound (County Court of Victoria, Marich J, 27 August 2019) (‘Ruling’).
The applicant now seeks leave to appeal pursuant to s 295 of the Criminal Procedure Act 2009 against the refusal of his application for a permanent stay of the special hearing.[8] The sole ground of appeal is that the trial judge erred in the exercise of her discretion in refusing to permanently stay the indictment.
[8]Pursuant to s 295(3)(b) of the Criminal Procedure Act 2009, the judge certified that the interlocutory decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
The allegations against the applicant involve the sexual abuse of children in his care many years ago. Between 1964 and 1968, the applicant was a housemaster and activities leader at the St Paul’s Home for Boys on Phillip Island. Four complainants have come forward alleging sexual abuse by the applicant during this period, when they were living at the Home as wards of the State. At the time of the alleged offending against them, their ages ranged from 9 to 16 years.
In the case of three of the four complainants, the allegations against the applicant were made in the course of the Royal Commission into Institutional Responses to Child Sexual Abuse and subsequently referred to the police. The complainant ‘LM’ has made allegations of genital touching while in the bathtub with the applicant, resulting in two charges of indecent assault; the complainant ‘MH’ has made allegations of genital touching while being spanked by the applicant, and while in the bathtub and in bed with the applicant, resulting in two charges of indecent assault arising from the spanking conduct and one charge of indecent assault arising from the alleged conduct in the applicant’s bed; and the complainant ‘DB’ has made allegations of genital touching while birdwatching with the applicant, resulting in three charges of indecent conduct.
LM confronted the applicant about his alleged conduct in 2011; MH told the applicant’s wife at the time of the offending that the applicant did ‘bad things’ to the boys when she was away in Melbourne.
The applicant was interviewed by investigating police on 7 September 2015 about the allegations made by these three complainants. The applicant denied the specific allegations put to him, but made some admissions as to ‘inappropriate activity’ with two of the three complainants.[9]
[9]The prosecution has filed a tendency notice, alleging that the applicant had a sexual interest in boys who resided at the Home and that he acted on that interest.
The fourth complainant came forward after the police interview. His allegations, which are the most serious of the allegations against the applicant, involve violent rapes and resulted in two charges of buggery. These allegations have not been the subject of a police interview.
When the offending allegedly occurred, the applicant was in his late twenties and early thirties and married with young children. He is now 83 years old and has dementia as well as a host of other serious physical conditions. He is not expected to live much longer. If the special hearing proceeds, he will be unable to attend in person and will, at best, watch proceedings via video-link. Based on the available medical evidence, it is unlikely that he will be able to maintain attention so as to follow what is going on. He will be incapable of giving instructions to his lawyers, let alone of giving evidence himself.
In applying to the trial judge for a permanent stay of the special hearing, the applicant relied on the following factors in combination:
(a) delay: the alleged offending took place between 51 and 55 years ago and there has been delay in the investigation and prosecution process since the complaints were reported;
(b) the applicant’s age, cognitive impairment and poor physical health: he is 83 years old and suffers from a number of serious health conditions;
(c) the lack of public interest in the prosecution of the applicant: it is highly likely that even if the applicant is found to have committed the offences, he will be released unconditionally; and
(d) generally, the applicant’s inability to receive a fair trial.
The same factors are relied upon to support the single ground of appeal. These factors in combination, so it is submitted, compel the grant of a permanent stay of the special hearing.
For the reasons that follow, I would allow the appeal and permanently stay the special hearing (or, more specifically, the indictment). To proceed with the hearing would result in unacceptable unfairness to the applicant, having regard to combined effect of the 51 to 55 year period since the alleged offending occurred and the applicant’s cognitive deficits and physical frailties that render him unable to participate in the special hearing and largely oblivious to its content and consequences. The most likely outcome of the special hearing is an unconditional release, even if the charges are proven. Notwithstanding the careful and cogent analysis carried out by the trial judge, these factors taken together require the permanent stay of the special hearing.
Legal principles
The power to order the stay of a proceeding is discretionary. The principles governing the exercise of the discretion have been considered in a number of High Court cases[10] and, indeed, by this Court, on a number of occasions.[11] The application of these principles in the context of the special hearing procedure was considered by the High Court in Subramaniam v The Queen[12] and by this Court in McDonald v the Queen[13].
[10]See, eg, Barton v The Queen (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23; R v Glennon (1992) 173 CLR 592; Walton v Gardiner (1993) 177 CLR 378; R v Edwards (2009) 255 ALR 399; Dupas v The Queen (2010) 241 CLR 237.
[11]See, eg, R v FJL (2014) 41 VR 573 and the cases discussed below.
[12](2004) 27 ALJR 116 (‘Subramaniam’).
[13](2016) 263 A Crim R 356 (‘McDonald’)
The general principles applicable to the grant of a stay due to delay in prosecuting allegations were usefully synthesised by this Court in Hermanus (a Pseudonym) v R[14] and Bauer (a Pseudonym) v R[15]. Both cases involved indictments for sex offences where, as here, there were very long delays in prosecuting the allegations.
[14](2015) 44 VR 335 (‘Hermanus’).
[15](2015) 46 VR 382 (‘Bauer’).
In Hermanus, the sexual assault took place in 1975. The complainant made a formal complaint to the police in 1999 but no prosecution ensued and the police brief was lost or destroyed. The Court (Priest JA with whom Maxwell P agreed) held that an indictment should be stayed 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.[16]
[16]Hermanus (2015) 44 VR 335, 341-342 [39]-[40] (Priest JA).
Having referred to the enquires to be made about the reasons for and consequences of delay, and to the public interest in the disposition of charges of serious offences and the conviction of those guilty of crimes,[17] Priest JA identified a number of further important principles, including the following:
[17]Ibid 339 [24], 342 [40].
(e) To justify a permanent stay of criminal proceedings 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.
(f) It is the probability of unacceptable unfairness — rather than the possibility — that is critical.
(g) A trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination. [18]
[18]Ibid 342 [40] citing R v FJL (2014) 41 VR 572 575 [18], [22]-[23] (Osborn JA).
In this context, Priest JA cited with approval the statement in CT v R[19] that delay between offending and prosecution does not erase a criminal liability and the adoption of limitation periods is a matter for the parliament and not the courts.[20] There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.[21] The law contemplates 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.[22]
[19][2014] NZSC 155.
[20]Ibid [32] (Elias CJ, McGrath and William Young JJ).
[21]Ibid.
[22]Hermanus (2015) 44 VR 335, 344 [44] (Priest JA).
In Hermanus, the fact that the criminal conduct occurred 40 years before the trial and the loss of the police brief in 1999 was not found to cause unacceptable injustice or unfairness to the accused.
The principles synthesised by Priest JA in Hermanus were applied shortly afterwards in Bauer, where a different outcome ensued. The accused was charged with 37 sexual offences allegedly committed between 1966 and 1998 against five complainants who were 4 to 11 years old at the time of the alleged offending. He applied for a permanent stay of the prosecution with respect to charges relating to four of the five complainants, relying on irremediable prejudice occasioned by the long delay in his case coming to trial. The application was refused by the trial judge and the accused was convicted of 33 of the charges on the indictment.
On appeal, verdicts of acquittal were entered in relation to the charges arising from the oldest of the allegations, which were made by the accused’s two sisters-in-law. The Court (Maxwell P, Weinberg and Priest JJA) held these charges should be permanently stayed on the basis that the trial of these charges was ‘unacceptably unfair’.[23]
[23]Bauer (2015) 46 VR 382, 402 [96] (Priest JA, Maxwell P and Weinberg JA agreeing).
The oldest allegations were of offending in the 12 month period between March 1966 and March 1967 when the complainant was 11 years old. The complaint was made in October 2010, some 44 years after the alleged offending and the trial, in March 2013, took place 46 years later. A delay of that magnitude was held to be ‘exceptional’.[24] It deprived the accused of the opportunity to produce evidence as to time, place and circumstance which may have cast doubt on the complainant’s version of events.
[24]Ibid 403 [100].
One matter occasioned by the delay that the Court considered to be important was the loss of a statement made by the complainant to police in 1994 alleging sexual misconduct by the accused. No charges were laid at that time. The Court considered that the loss of the 1994 statement deprived the accused of the detail of the allegations in circumstances where, given that the police had declined to lay charges at that time, it could be inferred that the failure to lay charges flowed from what was revealed or perhaps not revealed in the complainant’s account.[25] A further matter held to be significant was the loss of the opportunity to test the existence of a complaint allegedly made by the complainant to her mother, who had died by the time of the trial.[26] Furthermore, the Court identified as a factor motivating the prosecution of the very old and ‘relatively minor’ offences in question the perceived availability of supporting tendency evidence related to conduct embraced by other (more serious) charges.[27]
[25]Ibid 402 [99].
[26]Ibid 404 [104].
[27]Ibid 403 [102].
As for the allegations of the second complainant, a younger sister of the first complainant, the Court held that the very great delay, coupled with evidence bearing objectively on that complainant’s memory loss, should have led to the charges being permanently stayed. Again, the conduct alleged was, comparatively speaking, ‘not at the high end of seriousness’ for offending of that kind and the public interest did not demand prosecution of the charges after such a long period.[28]
[28]Ibid 406 [112].
In Green (a Pseudonym) v R,[29] this Court considered an interlocutory appeal upon the refusal by the trial judge to permanently stay the trial of 22 charges of sexual and other offences in circumstances where there was a delay in prosecuting the accused of between 44 and 52 years. The complainant alleged that her foster brother — older than her by eight years — committed the offences (involving vaginal, anal and digital penetration) when she was between the ages of 14 and 20.
[29][2017] VSCA 277 (‘Green’).
The Court allowed the appeal and granted the application for a permanent stay of the proceedings based on the potential unreliability of the complainant’s memory given her health issues, the death of important witnesses in the form of the complainant’s foster parents and an official who made notes of an earlier complaint of sexual abuse by the complainant, along with the unavailability of other records that would have supported or contradicted the complainant’s evidence.
As to the unavailability of witnesses and evidence, the Court stated that, taken individually, most of these matters would not have been sufficient to constitute prejudice to the accused which could not have been redressed by directions to the jury. However, taken in combination, they constituted a significant disadvantage to the applicant in the defence of the case.[30] When the concerns about the complainant’s memory were factored in, there was significant prejudice to the accused such that directions to the jury could not sufficiently overcome the total effect of the several disadvantage.[31]
[30]Ibid [102] (Priest, Kaye and Coughlan JJA).
[31]Ibid [105].
The Court concluded:
We are fully mindful that the charges against the applicant are serious. There is an important public interest that charges, involving such matters, be disposed of in court. However, this is an exceptional case. As we have noted, the delay is particularly long. No excuse has been put forward by the prosecution as to why the charges could not have been brought earlier … The prejudice to the applicant, resulting from delay, is not simply presumptive, but actual and substantial. In our view, the combined weight of that prejudice necessarily strikes at the very heart of the applicant’s right to a fair trial. We do not consider that it could be sufficiently offset by appropriate directions to a jury. Notwithstanding any such directions, we consider that a trial of the charges brought against the applicant would be so unfair as to result in a process which would seem quite alien to the fundamental principles that underlie the system of justice administered in this State.[32]
[32]Ibid [106].
Subramaniam and McDonald considered the principles applicable to a stay of criminal proceedings in the context of the special hearing procedure, where it is a given that the ability of the accused to give evidence, provide instructions or even to follow the course of the hearing may be non-existent or severely compromised.
In Subramaniam, the High Court considered an application to stay a special hearing in circumstances where there was no delay and the accused relied solely on her deteriorating mental health, arguing that it prevented her from being able to give reliable testimony and that further prosecution of the charges could result in its worsening. Neither reason was held to justify a permanent stay of the special hearing. The main difficulty for the accused was that the legislative regime assumed as the basis for its application to her, the very matter upon which she sought to rely to escape its application, namely, her mental infirmity and all that it involved.[33]
[33]Subramaniam (2004) 27 ALJR 116, 123 [29] (Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).
However, while the Court held that the possibility of the continuing deterioration of the accused’s mental health and any potential that the trial might have for its aggravation did not provide sufficient reason for the grant of a permanent stay,[34] this was not to say that, notwithstanding the manifest purposes of the legislation, there might not still be cases of mental infirmity calling for the grant of a stay even of a special hearing, although instances were likely to be rare. Where mental deterioration was in issue, ‘common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave’.[35]
[34]Ibid 123 [34].
[35]Ibid 123 [35].
Relevantly, the High Court referred to the special hearing regime as having ‘its deficiencies’[36], but identified its purposes to include the ‘ameliorative one’ of giving a person unfit to be tried the opportunity to be acquitted, so that any possibility of legal proceedings could be brought to an end, and to afford victims an opportunity to see that a form of justice, as necessarily imperfect as it might be in the circumstances, had been done.[37]
[36]Ibid 123 [28].
[37]Ibid.
In McDonald, the accused was found unfit to stand trial due to advanced age and mental impairment. The indictment contained ten charges of indecent assault, eight charges of gross indecency and one charge of sexual penetration of a child aged between 10 and 16 years.[38] There had been a long delay in bringing charges: the conduct in question was alleged to have occurred between January 1982 and September 1986, some 29 to 32 years before the charges were laid. The allegations were raised and investigated in October 2014 and the accused was charged on 31 July 2015. He sought a stay of the special hearing relying on his advanced age and the permanent and deteriorating nature of his cognitive impairment, the delay in prosecuting the proceeding, the absence of a public interest in prosecuting him and the impossibility of holding a fair trial.
[38]There were two complainants, the first of whom was aged about 11 years at the time of the alleged offences and the second of whom was 14 to 15 years old.
It will be observed that these factors are the same as those raised in the present matter, although the underlying facts are, of course, different.
The majority of the Court (Redlich JA and Beale AJA, Ferguson JA dissenting) held that the trial judge had erred by failing to consider whether the combined circumstances of the accused’s mental infirmities and the disadvantages arising from the delay were productive of unacceptable unfairness and whether, having regard to the likely outcome of the special hearing, there remained a sufficient public interest in the proceedings continuing.[39] The majority held that having regard to the very lengthy delay, the loss of evidence and witnesses and the degree of cognitive impairment, the unusual combination of factors and the diminished public interest in proceeding, the indictment should be permanently stayed.[40]
[39]McDonald (2016) 263 A Crim R 356, 369 [46] (Redlich JA and Beale AJA).
[40]Ibid 370 [48].
While it was accepted that a person’s mental infirmities have already been taken into account in the special hearing procedure, in McDonald, the majority found the nature and extent of the accused’s mental infirmity and its consequences to be important factors bearing upon the question of whether the special hearing would give rise to unacceptable unfairness. The accused’s mental infirmities had to be given their full weight.[41] Subramaniam did not require mental infirmity which rendered the applicant unfit to be tried to be treated as irrelevant or of marginal relevance to an application for a stay; it only indicated that, given the purpose of the special hearing, it would be a rare case where the mental infirmity alone could support the grant of a stay.[42] The majority concluded:
The presence of very lengthy delay, loss of evidence and witnesses, and the degree of cognitive impairment of the applicant constituted a combination of circumstances which in our respectful opinion compelled the conclusion that there was no sufficient public interest remaining that necessitated the continuance of the proceeding. The oppressive unfairness arising from this combination of factors could not be acceptably ameliorated by the adoption of procedural measures such as the giving of a forensic disadvantage direction or caution to the jury.[43]
[41]Ibid 369 [45].
[42]Ibid, citing Subramaniam (2004) 27 ALJR 116.
[43]McDonald (2016) 263 A Crim R 356, 369 [47] (Redlich JA and Beale AJA).
The majority held that to proceed with a special hearing of the accused would involve ‘incurable, oppressive and unacceptable unfairness of such an order as to constitute an abuse of process, whether of a special hearing or the indictment’.[44]
[44]Ibid 369 [48].
In a strong dissent, Ferguson JA stressed the substantial public interest in having those charged with criminal offences brought to trial[45] and that the special hearing procedure was established to apply to persons suffering from impairments of the kind suffered by the accused.[46] Her Honour also considered that the likelihood that the accused would be released unconditionally if convicted did not weigh heavily in the balance[47] and that appropriate directions could be given to ameliorate the prejudice to the accused arising from the loss of witnesses and other evidence and the presumptive prejudice that arises from the events having taken place so long ago.[48]
[45]Ibid 370 [51] (Ferguson JA).
[46]Ibid 370 [52].
[47]Ibid 371 [54].
[48]Ibid 371 [55].
The Ruling
The judge acknowledged that there had been considerable delay between the alleged commission of the charged acts and the initiation of charges in 2017 and that this delay was longer than the delay in most of the cases to which her attention had been drawn.[49] She recognised that in cases of very long delay, the fairness of a trial will almost invariably be compromised, at least to some degree, and correctly identified the central issue to be determined as whether the trial had been rendered ‘unacceptably unfair’ by the delay.[50]
[49]Ruling [143].
[50]Ibid [145].
The judge identified the applicant’s ‘most powerful argument’ to be the prejudice that he has and will continue to experience as a result of the considerable deterioration in his physical and mental health, with consequent effect on his ability to mount a defence.[51] However, while he had been found by a jury to be unfit to stand trial, confirming the extent of his cognitive decline, the presiding judge in a special hearing is obliged to provide jury directions as to, inter alia, the meaning of being unfit to stand trial and the purpose of the special hearing, the findings that are available and the standard of proof required for those findings.[52] Furthermore, the applicant had engaged in an extensive police interview and provided responses to the allegations, denying the charged acts.[53] This was not a ‘bare denial’ case, as the applicant had provided a full response to the allegations made by three of the complainants.[54]
[51]Ibid [152].
[52]Ibid.
[53]Ibid.
[54]Ibid [157].
The judge also stated that, without presupposing any result, it could not be said that the prosecution case was weak on any of the charges. Each complainant had made a plausible allegation.[55] Accordingly, she had regard not only to the public interest in having a determination of innocence of a person charged with serious offences, but also the interest of persons claiming to have been severely damaged by the actions of the applicant. The complainants had come forward and made statements which, if accepted by a jury, would involve findings of serious and damaging criminal activity. The judge considered that the serious nature of the charges and the youth of the complainants at the time of the alleged offending, as well as the allegations that the applicant potentially violated his position of trust in relation to vulnerable complainants, gave rise a significant public interest in prosecuting the offences.[56]
[55]Ibid [151].
[56]Ibid [158].
The judge stated that she gave full weight to the uncontested evidence of the applicant’s significant physical and mental infirmities but concluded:
In all of the circumstances of the case, I am not satisfied that the combined weight of the prejudice in this case strikes at the very heart of the [applicant’s] right to a fair trial. Neither am I satisfied that the special hearing of the charges would be so unfair as to result in a process quite alien to the fundamental principles that underlie the system of justice administered in this State.[57]
[57]Ibid [160].
Competing submissions
The applicant submits that the delay in this case is extreme by any measure and that the presumptive prejudice that accrues as a consequence of such delay has full effect. In mounting a defence, he will face the difficulties identified in Hermanus and Bauer, and to an unacceptable degree. Furthermore, so the applicant contends, there is not only the extreme delay between the alleged offending and it being brought to the attention of the police. There has also been lengthy delay in the investigation and prosecution process without any, or adequate, explanation by the prosecution. It has been four and a half years since the investigation of the allegations commenced.
The applicant identified a number of prejudicial features resulting from delay affecting the availability of records and witnesses, exacerbated by what were submitted to be serious deficiencies in the police investigation. Specific prejudice to the applicant’s ability to conduct his defence was identified as arising from:
(h) the absence of detail regarding what records were or were not kept in respect of the applicant and the complainants;
(i) the piecemeal nature of the information that does exist;
(j) the fact that there has been inadequate investigation into the existence of documentary evidence;
(k) the fact that many people who could have given evidence have not been contacted, are unable to be found, are uncooperative or have died;
(l) the absence of employment records documenting when the applicant and his wife started and terminated their employment at the Home;
(m) the absence of diagrammatic material; and
(n) the possibility that the complainants have documents that have not been made available to the applicant.
More specifically, the applicant contends that there has been a failure by investigating police to:
(o) attend at the site of the Home to view areas where acts were alleged to have taken place to determine if buildings remain, including the shower block;
(p) contact persons with whom residents of the Home stayed in school holidays;
(q) review Anglicare files for the fourth complainant;
(r) make enquiries as to various persons mentioned in the statement of the fourth complainant, including a man described as a gardener who may have worked in the gardening shed at the Home;
(s) determine if the Nature Club building still exists;
(t) request photographs described as ‘school portrait type photos for record keeping’ taken by the individual in charge of the cottage that are in the possession of one of the complainants;
(u) make enquiries as to a phone call between one of the complainants and the applicant’s wife discussing charges to be laid against the applicant;
(v) make enquiries about a counsellor in to whom one of the complainants reports disclosing some detail of the offending;
(w) make enquiries as to photos and articles written by the applicant given to one of the complainants by the applicant;
(x) verify the employment records of one of the complainants;
(y) make enquiries about a particular individual mentioned in the statement of one of the complainants;
(z) make enquiries of the applicant’s wife as to a solicitor to whom she requested one of the complainants make a statement in 1969;
(aa) make enquiries as to documents regarding the applicant’s financial provision to his family (mentioned in statement of the applicant’s wife); or
(bb) make enquiries as to various persons mentioned in the statement of the applicant’s wife.
In short, the applicant asserts significant forensic disadvantage arising from both the effluxion of time and the incomplete nature of the police investigation.
As to his age, cognitive impairment and poor physical health, the applicant relies upon the medical evidence adduced on his behalf, none of which was contested by the prosecution. He is unable to travel to Melbourne and even if he is permitted to sit and watch his trial from his home, he will be unable to follow the proceedings in a meaningful way, nor provide instructions regarding any of the evidence adduced. He will be a mere spectator, likely from afar, who is unable to understand what is going on in the special hearing because he cannot hold what he has heard and seen in his mind for long enough. This, the applicant submits, places him so far from the basic levels of engagement that the trial process contemplates for accused people as to demonstrate a fundamental unfairness.
Finally, the applicant submits that there is no public interest in conducting the special hearing because, having regard to his age and ill health, it is highly likely that if he is found to have committed the offences, he will be released unconditionally.
In answer to this, the respondent submits that there is a substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty. The special hearing process was specifically designed to accommodate persons who are unfit to be tried. As the judge noted in her ruling, the prosecution case on each charge is not weak; they are very serious charges involving four different complainants. There is a strong public interest in prosecuting such crimes.
The respondent does not dispute that the applicant is not fit to travel and will be unable to follow the course of the trial or instruct his counsel. However, the respondent submits that this case is distinguishable from McDonald, where the applicant was assessed as having dementia some twelve months after he was interviewed and was unable to enter a plea to the charges, unable to understand the nature of a trial and unable to understand the substantial effect of any evidence that might be given in support of the prosecution case. By contrast, the applicant’s conditions are not yet such as to render the conduct of a special hearing contrary to the standards of ‘common humanity’. The respondent points in particular to the unchallenged evidence that the applicant’s long-term memory is ‘good’.
The respondent further submits that the applicant’s attendance at the special hearing is not required and serves no forensic purpose in the light of the finding that he is unfit to instruct his counsel.
The respondent submits that counsel for the applicant can mount a viable defence in front of a jury. The defence is able to explore surrounding circumstances in cross-examination of the complainants and the informant has indicated a willingness to obtain any documents that are requested. Subpoenas can be issued and served on the relevant agencies to obtain any relevant documents that might assist the defence case. While there is a general absence of witnesses and documents, it remains open for the defence to explore such matters in cross-examination of the complainants and the informant.
The respondent submits that the applicant’s specific denials in his record of interview in respect of three of the four complainants, and a general denial as to having ‘sex with the boys’, lays the foundation of a defence. The applicant admits to being a carer at the Home during the relevant period, he admits knowledge of three of the complainants and to loving one complainant in a non-sexual manner. He also admits to some inappropriate sexual activity with two complainants, even remembering their names, and suggests reasons why the complaints may have been fabricated. According to the respondent, this case is far removed from a ‘bare denial’ case. The nature of the allegations means that there were no eye witnesses. This is not a case of mistaken identity, as the applicant admits knowledge of the complainants at the relevant time and place. It is a ‘credibility’ case and the assessment as to whether the complainants are to be believed will depend on the quality of the evidence adduced by each of them at the special hearing. It will also involve consideration of the applicant’s responses in his record of interview and other supporting evidence.
The respondent submits that prejudice resulting from delay can be managed by way of appropriate forensic disadvantage directions to alleviate any potential unfairness.
Analysis
The trial judge’s decision to refuse the stay was discretionary. Intervention is therefore warranted only if it is demonstrated that the refusal of the permanent stay was not reasonably open to the judge in the sound exercise of her discretion. As it is not alleged that the judge acted upon a wrong principle, allowed extraneous or irrelevant matters to guide her, failed to take into account some material consideration or mistook the facts, the applicant must establish that the initial decision on the facts was unreasonable or plainly unjust, such that ‘a substantial wrong’ has occurred.[58]
[58]House v The King (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).
The applicant relies on a combination of the impacts of the delay on his ability to defend himself and his mental and physical frailties preventing him from engaging at all in the hearing process. These factors are submitted to operate cumulatively, each factor featuring larger in combination with the other than it would standing alone.
It is not in issue that the applicant suffers from cognitive deficits and physical conditions that prevent him from participating in the special hearing. Nor is it in issue that he is unfit to travel to the hearing and will, at best, observe the trial remotely by video-link. However, the respondent argues that the applicant is in a better position than the accused in McDonald, who was suffering from advanced dementia that prevented him from satisfying six of the seven minimum standards for being mentally fit to be tried. In contrast, the applicant failed to satisfy only two of those standards.
It is true that the effects of the applicant’s dementia do not appear to be as pronounced as those of the accused in McDonald. The applicant was assessed as able to enter a plea, and as able to understand the nature of the trial and substantial effect of evidence that may be given in support of the prosecution. However, the applicant’s mental infirmities must be given their proper weight.[59] In order to understand the extent of the applicant’s mental and physical frailties and their impact on the trial of the allegations against him, it is necessary to review some of the medical evidence. Among other things, that evidence sheds some light on the quality of the applicant’s answers in the record of interview, the existence of which the trial judge considered, and the respondent submitted, serves to lessen the forensic disadvantage that the applicant will face in mounting his defence, in view of his inability to participate in the hearing.
[59]McDonald (2016) 263 A Crim R 356, 369 [45].
Before the trial judge, the applicant relied on the expert evidence of a neuropsychologist and a forensic psychologist concerning his fitness to stand trial.
The neuropsychologist, Dr Loretta Evans, provided a report dated 19 February 2018. Her testing of the applicant revealed extremely slow cognitive processing (declining further with increasing complexity) and limited working memory capacity, which affected immediate memory and the applicant’s capacity to learn information, as well as to spontaneously retrieve material from memory over time. The applicant’s verbal reasoning capacity was impaired and she described the applicant as highly impulsive, lacking adequate self-monitoring skills and as responding in a manner indicating ‘limited insight about his behaviour’.
Dr Evans opined that the applicant was not fit to stand trial on the basis that he was unable to follow the course of the trial and as such would be unable to give instructions to his legal practitioner. Nonetheless, she was satisfied that the applicant understood the nature of the charges against him and that he understood and was able to enter a plea of guilty or guilty. In addition, Dr Evans was satisfied that the applicant understood the nature of a trial and had a basic, ‘quite shallow’, understanding of the substantial effect of evidence that may be given in support of the prosecution. [60]
[60]Dr Evans also found that the applicant understood at a basic level the role of the jury (and that he has a right to challenge jurors). Although the applicant exhibited some lack of clarity when speaking about the role of witnesses in a trial, he provided adequate definitions regarding the roles of the judge, prosecution, the jury, the defendant and the police.
However, Dr Evans reported ‘serious concerns’ about the applicant’s ability to follow the trial, given his degree of cognitive slowing and significantly impaired working memory capacity and disrupted attentional abilities. She described the applicant as highly impulsive and self-distracting, and as lacking the ability to self-monitor. He would be unable to keep up with lengthy or convoluted conversations and would be unable to maintain his demeanour, sustain his attention or concentrate on the proceedings for any prolonged period of time. In addition, he would be unable to monitor, retain or process what is being presented at the trial in order to give, or change, instructions to his legal practitioner.
The forensic psychologist, Dr Dion Gee, prepared a report date 15 January 2019. Dr Gee found the applicant to have compromised cognitive, behavioural and emotional functioning and to meet the diagnostic criteria for a Major Neurocognitive Disorder, Dementia, and as fulfilling the legislative criteria to be unfit to stand trial, not only because he suffered from memory loss, but because his compromised memory capacities impaired his functional abilities. More specifically, Dr Gee reported that while the applicant demonstrated a reasonable appreciation of the conduct for which he had been charged and was aware of several types of information that might be used in evidence, his ‘current neuropsychological capacities would make him a vulnerable, unreliable, and potentially self-sabotaging witness; if indeed he had the capacity to formally engage with the evidentiary process across the course of a trial.’[61]
[61]Dr Gee found that the applicant’s ability to provide instructions to his legal practitioners ‘appeared somewhat compromised; with his neuro-cognitive functioning making it increasingly likely that such capacities would deteriorate further across the proceedings.’ Indeed, there was ‘little to suggest that [the applicant] could competently instruct his lawyer across the course of a trial, even if a degree of assistance was provided; a situation further compounded by his thwarted capacity to engage with and follow the course of a trial’.
Dr Gee reported that the applicant, in questioning, struggled with functional abilities across several domains, even where specific support and assistance was provided. He also demonstrated ‘sustained difficulties with attention and concentration, short-term memory, and executive processes that would translate into a reduced capacity for him to follow the course of a trial; regardless of whether he actually has the capacity to understand/appreciate such processes.’ Although the applicant had an understanding of the need for self-regulation in the judicial process, without clear structure and support his presentation would deteriorate into a less stable and functional demeanour. This would likely further decline if the applicant was to engage with an environment that was novel, unfamiliar or stressful.
It is plain from this evidence that the applicant is not only very unlikely to be able to render any assistance to his lawyers in the conduct of his defence, but that he will be unable to follow the evidence that is adduced by the prosecution. While the special hearing procedure is designed to accommodate the kind of mental infirmity from which the applicant suffers, as the majority said in McDonald, that infirmity must be given its full weight and should not be treated as irrelevant or of marginal relevance to an application for a stay. In this case, the applicant has not only cognitive deficits, but significant behavioural problems associated with these deficits. He is, as Drs Evans and Gee found, impulsive, unreliable and potentially self-sabotaging, with limited insight into his behaviour.
The applicant’s doctor, Prof David Hardman, gave evidence before the trial judge about the applicant’s physical state and shed some light on his generally disordered thought processes and lifestyle. Prof Hardman is a consultant vascular surgeon who testified to having seen the applicant every six to eight weeks over a period of eight years at the hospital outpatient clinic in order to treat the applicant’s peripheral arterial disease. Aside from vascular dementia, the applicant suffers from total body arthrosclerosis and ischaemic heart disease. The blood supply to the applicant’s legs is severely compromised and he is barely able to walk. In relation to the progress of these conditions and the applicant’s life expectancy, Prof Hardman said, ‘I would be surprised if I saw him in two years’ time.’ The applicant has previously had heart attacks, and Prof Hardman’s focus is on holding at bay the amputation of the applicant’s legs until he dies from another heart attack.
Prof Hardman also made reference to the existence of ‘pathological fractures’ resulting from osteoporosis and to the applicant’s recorded history of mental health issues. The applicant’s medical records indicate that he has received treatment for schizophrenia, which, in Prof Hardman’s experience, tends to ‘burn out’ over time, so the applicant now requires no treatment for it. Nonetheless, he described the applicant as ‘absolutely mad’ in a colloquial sense, dressing in full length velvet robes like Albus Dumbledore and carrying a staff like Gandalf, with waist length hair and beard. He described the applicant’s short-term memory as poor, but his long term memory was ‘generally intact’, albeit ‘vague and wandering’ and ‘very much piecemeal’. It was Prof Hardman’s impression that the applicant relies on his carer to manage his medical appointments and medication.
The question is how the consequences of the applicant’s clear and debilitating mental and physical infirmities are to assessed, having regard to the concurrent impacts of the very long delay in bringing and prosecuting the charges.
It is clear that, as a result of the passage of 51 to 55 years, the applicant will be deprived of the opportunity to produce evidence as to time, place and circumstance which might cast doubt on the complainants’ versions of events, a disadvantage that is apparently worsened by the lack of inquiry into some of the matters identified by the applicant in his submissions. There is a paucity of contextual evidence and much will rest on the evidence given by the complainants — in response to which the applicant will be able to say little or nothing.
There are plainly measures that can be taken by the trial judge to ameliorate the forensic disadvantage arising from the 51 to 55 year delay and the applicant’s inability to participate in the hearing. The Act requires an explanation to be given to the jury at the commencement of the special hearing that the accused is unfit to stand trial in accordance with the usual procedures of a criminal trial, what being unfit to stand trial means, the purpose of the special hearing, the findings that are available and the standard of proof required for those findings.[62] As to the effects of delay, the judge can give detailed forensic disadvantage directions under the Evidence Act 2008. Insofar as there are further matters that require investigation, the prosecution has offered to provide further information. The applicant can issue subpoenas and use the processes of the court to seek to elicit missing information. The prosecution has said that it does not oppose preparatory cross-examination of the four complainants. It remains open, of course, for defence counsel to cross-examine the complainants at trial, and this will no doubt be the principal basis upon which the applicant mounts his defence. I accept that adoption of these measures will go some way towards ameliorating the forensic disadvantage suffered by the applicant.
[62]Act s 16(3).
The trial judge placed weight on the existence of the record of interview to counterbalance the prejudice arising from the applicant’s inability to participate in the hearing. The record of interview will stand as the applicant’s evidence in response to the allegations against him. Having regard to its importance in the exercise of the judge’s discretion to refuse a stay and its future role in the trial of the applicant, it is instructive to consider the quality of the answers given by the applicant in the record of interview and the extent to which his denials and admissions can be understood as relating to the charges that he faces.
The applicant voluntarily participated in the interview with investigating police on 7 September 2015. He was 79 years old at the time. He was assessed with cognitive vascular dementia and considered to be unfit to be tried in February 2018, some 29 months after the police interview. The interview took place over two hours over the course of an afternoon and the applicant was asked 789 questions. He endeavoured to answer all the questions.
I have listened to the audio recording of the interview and read the transcript. The applicant was forthcoming, indeed, talkative, in the interview. He appeared to enjoy the attention and the opportunity to talk. His responses were unguarded and unfiltered. He was told at the outset that the interviewing officer proposed to ‘treat this more as a conversation, more of a discussion, really’, to which he responded, ‘that’s what it will be for me.’
The applicant explained how he moved to Australia from the United Kingdom, how he met his wife, Leonie, and how they came to be employed at the Home. He referred to being brought up in an institution himself, to meeting Leonie while working in another. He said had married her ’to get rid of the loneliness, the isolation I was feeling, I’ve felt all my life.’ In fact, he described his seven year marriage as ‘quite disturbing’. His wife suffered from mental illness and left the marriage when their children were small. The children ended up in care.
The applicant described the regime at the Home as austere and its director as a strict disciplinarian. However, he was enthusiastic about his initiatives as housemaster and activities leader: building a museum; turning the gymnasium (‘which just fosters more violence and competition’) into a den; starting a natural history club and publishing a magazine called ‘The Kookaburra’. He claimed to have started the first conservation society in Victoria. He said his day to day duties included getting the boys up, getting them showered and ready for breakfast, helping them to wash the dishes and then walking them to school. He described precisely where the Home was located at the entrance to Philip Island. When asked how many children there were at the Home, he said there would have been about 50. The six year olds had a housemother and the intermediate boys, aged nine through to 13, were in a big dormitory separate from the six year olds. There was another part for the older boys where he and his wife also lived, known as ‘the cottage’.
The applicant volunteered that he remembered two boys that he got on really well with — the complainants LM and MH.
When asked who else was in the intermediate group, he said he could give all of the names and that he had photos of them all. However, when pressed as to who else was there he said he could not remember.
When the applicant was asked about LM and his brother, he volunteered information about the following incident involving LM:
And they used to come and then — only [LM] once. Unfortunately what I did do was ignorant, I know that. But I got really stiff in the morning and he saw it. I think he — I must have freaked him out and that. But I never touched him, never did … ask him for anything. Didn’t work at — in … nothing. I don’t mind what people do as long as they do it with informed consent, you know. I hate that sort — I don’t hate it. I can’t find myself — you can’t be loving and hate at the same time. That’s just a mind trip, you know. As soon as one — well, what do you call it? Your motive … you know. I’d rather die a martyr than bloody well be a hypocrite. In that sense you’re a hypocrite sometimes without knowing it … I did. For fear — I mean … harm was tremendous.
The applicant explained that LM slept in his house with him and that the only bed in the house was a double bed. In the morning LM woke up and saw the applicant’s erection. The applicant continued:
But I mean, I was in the hippy stage too, you know, free love and all that, but I wasn’t doing that with the boys, you know. I wasn’t doing that with the boys. There was a lot of discipline there. Goodness gracious, what happened in those days, I don’t think there’s hardly anybody who couldn’t be put in jail because, I mean, the system … .
I take the applicant’s reference to people being put in gaol as a reference to physical brutality in the Home rather than to his own conduct, but the answer is ambiguous.
LM has made no allegation about being assaulted in bed by the applicant. LM’s allegations relate to incidents when he was induced to get in the bathtub with the applicant, apparently in the cottage where the older boys and the applicant and his family lived.
When it was put to the applicant that he had fondled LM’s genitals and had asked LM to masturbate his penis he said:
Never in my life have touched his penis, never in my life, I know that.
He said he could ‘not agree’ with LM saying that he had asked LM to touch his genitals.
When it was put to the applicant that there was another incident where he made LM masturbate his [the applicant’s] penis in the bath, the applicant made further unequivocal denials:
Sorry. I just have to say no. If he’d done anything like that I’d admit it. No, I can’t say yes to that cause it’s not happened. It didn’t happen.
The applicant could not recall whether there was a bath in the cottage and could not recall having a bath with LM. When the allegation was put to him that while in the bath with LM he tried to get LM’s penis to become erect, he said:
No, no. that’s just …. out of custom for me. I would never – I have never been in a bath with a boy of an institution anywhere like that. It’s just – I mean … I don’t know … I don’t know. I don’t know cause I don’t know a thing about it cause it never happened, it really didn’t. I’m not going to lie about it. If it did I would say so … Everybody says that don’t they?
Generally in relation to the alleged bathtub offending, the applicant said that he had ‘nothing’ and didn’t need to spend time thinking about it. This was because in his heart he knew it didn’t happen.
When asked whether LM slept with him in the cottage, the applicant said;
No, that’s – honestly, no, I’m sorry, that I don’t give any – can’t give any truth to that. That is just – it’s just out of character with [LM] and I.
He said no boy ever slept in bed with him in the cottage and he did not bathe with LM.
These denials were interspersed with a number of apparently unrelated stories about composing poems, gatherings where things were said, somebody in the San Remo cinema ‘who has been put up for it or something, maybe gone to court or something’ and things wrapped in lead being put under palm trees.
The applicant was asked whether he had a good relationship with MH. He responded:
Yeah, I loved him. I wanted to — I put in for an application, I think, to … adopt him. … It was just not taken because I was a staff member. I gave no reason and I was naïve, you know. But I just loved him in a sense but not through any sexuality. I loved him cause he was — I saw, I suppose — in a sense you do, you see a reflection of yourself in other people, nature, keen, always asking questions, you know … problem, you know, that sort of thing, that spontaneity type of thing, which is very hard cause … .
When the applicant was asked whether he wanted to say anything about MH before MH’s allegations were put to him, he said:
I’ll confess cause it’s the truth. I did once I think — it may have been when I was in that old bush hut. I was so distraught having — leaving cause I had built up such a — a reputation in a sense with the local people. I was the leading conservationist, I became the — the wildlife ranger, and that much later started the organisation, had written a book about it. And I never — yeah, I think — I think but I can’t remember what I did with him but he never — he never wanked me to the point of ejaculation; he just touched me I think. It was not a — it was something I’ve been ashamed of ever since but I — I find I do sometimes when things are closing on me because — I used to, not now — I used to revert back into that — that, whatever you’d wanna call it, a high — not a high school, but he was just a ball of fear, he just — you know, it’s cowering, it’s — and you don’t — you don’t want to live because that becomes terrible to — to your way of thinking then.
When asked what happened with MH, the applicant said:
I know I only asked him to touch me once if I remember rightly. I can’t — there’s some distant — yeah, yeah, I did but that was cause we were sleeping in there. That’s the only time that I had touched anybody else there. I’ll confess to that cause I mean I — I respect [MH]. I still have very fond — wondered how he’s got on and, you know, his mother didn’t care, she didn’t come to visit him and he had a brother.
When asked whether he touched MH’s penis, the applicant said he was not sure if he did, he didn’t know. He then immediately said, ‘Yeah, I touched him and he touched me. Now, did it happen … how we came to do that, I don’t know’. The applicant said he did not have a picture in his mind of what happened, but he was on his own. It happened after he had left the Home. He swore that he never ‘played with’ anyone while he was working at the Home. He said, ‘I feel that I can’t do any more than say that’.
The applicant could not remember how old he was when this incident occurred. He said that he might have asked MH to touch him when he was living (away from the Home) at Ventnor. He said:
I don’t know. You know, I got no clear thing but, yeah, whatever it was it was inappropriate, put it that way.
When asked whether he had asked MH to ‘finish him off’ and what that meant, he said, ‘yes’, he might have done so and that it meant to ejaculate. He described this as ‘only a one-off occasion though’.
When the allegation was put to him again, the applicant said:
Yeah, sounds a funny way of saying how to do a thing like that anyway. I wouldn’t go out to ask anybody, a kid or … to come inside to do that — yeah. But, no, we must have been together.
He said he could not remember the details and it was something he did not want to remember anyway.
The alleged conduct the subject of the charges involving MH was holding MH’s genitals while the applicant had MH over his knee and was spanking him (resulting in 2 charges) and later conduct when the applicant had left the Home and MH visited him on the farm where he was living. LM alleges that the applicant invited MH to sleep in the bed with him and masturbated his penis (resulting in 1 charge).
The applicant agreed that he had held MH’s genitals while he had him over his knee to spank him in the shower room of the Home.
The applicant was asked about another incident with MH (uncharged) that allegedly took place in the bathtub at the cottage and was observed by his wife. When he was asked whether he was in the bath with MH, the applicant said:
I can’t recall. I wouldn’t be able to remember it but I know there was — there had — there would’ve had to be no sexuality involved. If I was there might be — no, no, I … already said no, cause I wouldn’t leave — leave myself open to that. He never — he never bathed in the cottage with me. I can rest assured that nobody else did either.
In relation to the credibility of his wife’s account, the applicant said he did not think she lied, ‘because she imagines things’.
In relation to DB, who was part of the bird watching group, the applicant said that he did not remember him really, but the name ‘rang a bell’. He said ‘Yeah, anyway, go on. What does he say I did or didn’t do or what?’ When told that DB went on camping trips with the applicant, the applicant named another person. He said he met this person ‘down the street one day and he says, “hello, Mr Pound”. He says, “you really loved us didn’t you”. He said, ”Oh, we gave you a hard time didn’t we?” I was just flabbergasted but I did — I … him too in that — in a way because he was [a] bed wetter.’ The applicant was reminded that that person was not part of the investigation.
When DB’s allegations that the applicant grabbed his hand and put it on his [the applicant’s] genitals were put to the applicant, he said:
Really? I wasn’t looking at — no, that’s just … and I’ve never — I don’t think I was looking after him. Was I? I can’t remember him. No, he was one that doesn’t come to my mind at all. I never — I never — no, this — that’s going on and then yet you say, well, you do it with one, you’re gunna do it with the whole lot. Well how many kids did I help there all the time I was living there and — and — and — and that now you — there’s [DB] whose saying something about me that I don’t even know. No, I’m sorry, that didn’t happen … did that. Why would I do that out there? No, I wouldn’t do with little boys outside.
When it was then put to the applicant that he pulled his penis out and put it in DB’s hand, the applicant said:
Well, there seems to be a sound of … and this – I think this is what they talk about in the afternoon. No, no.
The investigating officers had difficulty keeping the applicant focused on the question, particularly as to what happened on the bird watching trips. After an especially unhelpful digression, the applicant was told, ‘You’re not understanding what I’m asking you’. The applicant volunteered:
No, I never was — never had — been alone for that. I don’t want to — I didn’t — I can remember consciously don’t go into rooms with kids on their own. I’ve been told — that’s one of the jobs I think.
The investigating officer reminded the applicant that she was not talking about ‘the rooms’. She was talking about the bird watching.
Overall, the questioning of the applicant was protracted and he gave disjointed, rambling answers to many of the questions. Although the applicant was apparently keen to give answers to questions, his responses were frequently non-responsive (at best) and incoherent (at worst). He displayed a marked propensity to digress and struggled to remain ‘on topic’. He had to be repeatedly brought back to the question. His memory was uneven, albeit quite detailed in regard to some matters. Significantly, he lacked filters and volunteered information about his life willy nilly. As a result, it is not easy to discern whether his answers relate to the charged acts or to other incidents. He appears — as the psychological evidence indicated he later was — impulsive, lacking in self-monitoring skills and self-sabotaging.
Having regard to the nature and quality of the applicant’s responses in the record of interview, I am not persuaded that, for the purposes of founding his defence, they rise much above bare denials. In my view, the record of interview does little to ameliorate the forensic disadvantage arising from the applicant’s inability to participate in the special hearing and from the effluxion of time.
Furthermore, the interview does not deal at all with the most serious of the charges against the applicant, the charges of buggery, which arise from the complaint made by the fourth complainant. The applicant has not responded to those allegations at all and he is now unable to do so.
The allegations against the applicant are both serious and plausible: three of the complainants make allegations of similar conduct by the applicant; two of the three make allegations of very similar conduct. The conduct alleged involves the sexual exploitation of young and very vulnerable children by an adult charged with their care. There is a strong public interest in the prosecution of charges of this kind.
Taken on their own, the applicant’s cognitive deficits, physical infirmity and limited life expectancy are not determinative of the question before the Court. These factors alone do not make the special hearing ‘unacceptably unfair’. However, they must be considered in combination with the exceptional delay in first bringing and then prosecuting the charges, having regard to the pronounced forensic disadvantages associated with that measure of delay. The length of the delay in this case — 51 to 55 years — is exceptional and extreme. By comparison, in McDonald, the delay was 29 to 33 years; in Bauer it was 44 to 46 years; in Green it was 44 to 52 years. Although the law contemplates that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair,[63] in this case the tolerance shown by the law for a trial to be attended ‘to some extent’[64] by unfairness, prejudice or forensic disadvantage as a result of delay, has reached its limit. Whatever measures are taken to reduce the prejudice to the applicant, it will remain a significant problem, especially in light of the applicant’s inability to participate in the trial and what I have found to be the largely unhelpful record of interview.
[63]Hermanus (2015) 44 VR 335, 344 [44] (Priest JA).
[64]Ibid.
Conclusion
The presence of the very lengthy delay, the loss of evidence and witnesses, and the applicant’s degree of cognitive impairment and physical infirmity constitute a combination of circumstances which, in my view, makes it impossible for there to be a trial of the allegations against him that is not unacceptably unfair. The unfairness arising from this combination of factors cannot be acceptably ameliorated by the adoption of procedural measures such as the giving of a forensic disadvantage direction or caution to the jury.
In so concluding, I have taken into account the serious nature of the charges and the youth of the complainants at the time of the alleged offending, as well as the allegations that the applicant violated his position of trust in relation to very vulnerable complainants. I have also taken into account the strength of the prosecution case and the fact that there is no suggestion that the complainants are not credible witnesses. However, I consider that the public interest in the prosecution of the charges is in this case outweighed by the unacceptable unfairness to the applicant that would inevitably result from the conduct of a special hearing.
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