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Kitchingman v R

Kitchingman v R

Case [2023] NSWCCA 4 3 February 2023

Interlocutory Orders

Unfitness to Stand Trial

Stay of Proceedings

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Kitchingman v R [2023] NSWCCA 4
Hearing dates: 29 November 2022
Date of orders: 3 February 2023
Decision date: 03 February 2023
Before: Basten AJA at [1];
Dhanji J at [45];
R A Hulme AJ at [46]
Decision:
(1) Grant the applicant leave to appeal from the judgment in the District Court of 2 November 2022 refusing a permanent stay.
(2) Dismiss the appeal.

Catchwords:
CRIME – procedure – interlocutory appeal – application for permanent stay – applicant unfit to stand trial – charge of buggery with child – special hearing to be conducted – refusal by trial judge to permanently stay proceedings – reliance on delay, cognitive impairment and physical infirmity – whether judge erred in not finding continuation of proceedings unacceptably unfair

Legislation Cited:
Bail Act 2013 (NSW), s 6(1)
Crimes Act 1900 (NSW), s 79
Criminal Appeal Act 1912 (NSW), s 5F
Mental Health Act 1958 (NSW), ss 23, 24
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 49-51; Pt 4, Div 3; ss 56(1), 57, 59, 63(2); Sch 2, cl 7
Mental Health (Forensic Provisions) Act 1990 (NSW) Pt 2, s 22A

Cases Cited:
Derley v R [2016] NSWCCA 60
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46
MoubarakbhtCoorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102
R v Edelsten (1989) 18 NSWLR 213
R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155
R v Steffan (1993) 30 NSWLR 633
R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394
Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51

Category: Principal judgment
Parties: Allan Kitchingman (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Watts (Applicant)
B Hatfield (Respondent)
Solicitors:
R Behan, Solicitor for Legal Aid (NSW) (Applicant)
C Hyland, Solicitor of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/00092656
Publication restriction: Statutory prohibition on identification of complainant
Decision under appeal

Court or tribunal:

District Court Lismore

Jurisdiction:

Criminal

Date of Decision:

2 November 2022

Before:

McLennan DCJ

File Number(s):

2019/00092656

JUDGMENT

BASTEN AJA: The applicant, Allan Kitchingman, seeks leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) from an interlocutory judgment of the District Court given on 2 November 2022. On that date, Judge McLennan SC dismissed an application for a permanent stay of a special hearing involving the applicant.
The applicant was charged on 13 March 2019 with one offence of buggery as identified in the Crimes Act 1900 (NSW), s 79, as in force in 1977/1978. The charge was based on a complaint that the applicant, then an Anglican priest in Mullumbimby on the New South Wales north coast, had engaged in anal intercourse with the complainant, then a boy aged 12 or 13 years.
On 24 September 2020, following an inquiry conducted under the Mental Health…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kitchingman v R

Details

AGLC: Kitchingman v R [2023] NSWCCA 4
Case: [2023] NSWCCA 4
Decision Date: 03 February 2023

CaseChat Overview and Summary

The applicant, Mr. Kitchingman, was charged with the serious offence of buggery with a child. He sought a permanent stay of the proceedings on the basis that he was unfit to stand trial due to a combination of cognitive impairment and physical infirmity. The trial judge had previously held that Mr. Kitchingman was unfit to stand trial, but had refused to grant a permanent stay pending an assessment by a special hearing. Mr. Kitchingman appealed this decision to the Court of Appeal, arguing that the trial judge had erred in not finding the continuation of the proceedings unacceptably unfair. The appeal was heard by a Full Court of the Court of Appeal.

The central legal issue before the court was whether the trial judge had erred in not granting a permanent stay of the proceedings. The court had to consider the factors relevant to determining unacceptably unfair proceedings, including the delay, the cognitive impairment and physical infirmity of the applicant, and whether these factors rendered the continuation of the proceedings unacceptably unfair. The court also had to consider the balance of the interests of the applicant, the Crown and the community in determining whether a permanent stay was warranted.

The Full Court found that the trial judge had not erred in refusing to grant a permanent stay of the proceedings. The court held that the factors relied upon by Mr. Kitchingman were not sufficient to establish that the continuation of the proceedings was unacceptably unfair. The court emphasised the importance of ensuring that the rights of the accused are protected, but also noted the need to balance this against the interests of the community in the prosecution and punishment of crime. The court held that the trial judge had appropriately exercised his discretion in refusing to grant a permanent stay, and that the application should be dismissed.

The Full Court dismissed the appeal and affirmed the decision of the trial judge. The proceedings against Mr. Kitchingman will continue pending the outcome of the special hearing to assess his fitness to stand trial.

Orders