R v Calvert - [2014] SADC 116

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v CALVERT
[2014] SADC 116
Ruling of His Honour Judge Rice
3 July 2014
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS
Application for a permanent stay based on the medical condition of the accused, together with the cost of the accused attending in South Australia (from New South Wales) and the cost of his medical oversight as the trial progressed.
Application refused.
Barton v R (1980) 147 CLR 404; R v Jacobi (2012) 114 SASR 22, considered.

R v CALVERT
[2014] SADC 116
Introduction

This is an application to permanently stay the Information of 6 September 2011. The sole charge against the accused is one of persistent sexual exploitation of a child, contrary to s 50 of the Criminal Law Consolidation Act 1935. The charge relates to unlawful sexual conduct against a male commencing in 1971 and finishing in about late 1978. The alleged victim is said to have been less than 17 years.
The basis of the application is this. The accused now lives in Maitland, New South Wales and his trial is proposed to be funded through legal aid. He now has significant health problems and, whilst it is theoretically possible for him to travel to South Australia for the trial, the cost of that travel is prohibitive for him and it is unlikely that anyone else would be prepared to pay. Further, those same health problems mean that he would need constant care during the trial itself and again he is not in a position to pay and it is unlikely that anyone else would be prepared to pay. As can be seen, this basis comes down to a question of the cost of being able to start the trial and the cost of holding the trial such that it will be fair to the accused. It was submitted that this was a “fundamental defect” which goes to the root of the trial and is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.” In addition to that, it was submitted that the accused’s health problems were such that he could not receive a fair trial: see Barton v R[1].
[1] (1980) 147 CLR 404, per Wilson J at 111.
Background
When first arraigned on 6 September 2011 at Port Augusta, the accused pleaded “not guilty”. As at that time he was mentally and physically fit to stand trial. He is now aged 78 years. There were a number of efforts to list the matter for trial in the Port Augusta circuit. It was not a priority matter and other cases which had a greater priority were listed ahead of it. In addition to that, the complainant was serving a prison sentence in Western Australia and was not being paroled until late 2012.
A reading of the many directions hearings to have this matter listed for trial show that the accused was willing to have his trial. His counsel, Mr Jolly, pressed for it on a number of occasions. Although his bail had been varied to allow him to live interstate, it was not suggested as at that time that his physical or mental condition would prevent him returning to this State and participating in the trial.
At a directions hearing on 20 August 2012, the matter was listed for trial at Port Augusta in November/December 2012, eventually 3 December being set aside for it to commence. The matter did not proceed to trial on that day for two reasons, the accused’s ill-health (in New South Wales) and the complainant remained in gaol in Western Australia (parole having been refused). Proof of the accused’s ill-health was provided to the Court and prosecution.
Since late 2012, early 2013, the matter had not been able to be listed for trial because it was submitted that the accused was physically incapable of travelling to Adelaide for trial. The case was transferred to Adelaide for trial pursuant to an order of the Court made in August 2013. The matter was eventually listed for trial on 14 April 2014. The present application eventually came on for hearing on 26 May 2014. The earlier date had to be vacated because it was proposed to call medical evidence (via audio visual link) from a doctor in New South Wales.
Medical condition of the accused
There does not appear to be any challenge to the medical conditions of the accused. I have had regard to the following reports from his treating general practitioner and specialists: Dr Bergin (his general practitioner); Dr Cassim (specialist physician and respiratory physician) reports dated 13 November 2013 and 19 February 2014; Dr Patterson (consultant urologist) report dated 20 November 2013; Dr Moughal (consultant physician and diabetologist) report dated 25 November 2013; and Dr Diu (consultant cardiologist) report dated 12 February 2014.
Dr Diu gave evidence by audio visual link on 26 May, 2014 from Maitland Hospital, Newcastle, New South Wales. Dr Diu was first consulted by the accused on 30 September 2013 at Maitland Hospital. He has been the accused’s consulting cardiologist since that time. The accused presented with congestive cardiac failure. Dr Diu referred to his report of 12 February 2014. In that report he expressed this opinion:
He is due to appear in court in Adelaide for possibly 5 or more days for some legal issues. I have advised him that due to his chronic ill health with severe cardiomyopathy and chronic airway disease, he is not medically fit for this trip to Adelaide which is likely to trigger exacerbation of his heart failure and chronic airway disease. He has regular follow-up arranged with Dr Khalil Cassim. I have left his follow-up open but will review again as required.
Dr Diu maintained that view in evidence but agreed it was technically possible to transport someone in the accused’s condition from Maitland (where he lives) to Adelaide. Dr Diu said it could be done by air provided, as a bare minimum, oxygen was available along with suitable medical personnel to manage his coronary arterial disease, heart failure and chronic airway disease. Resuscitation equipment needed to be available to deal with an emergency situation. As I understand the doctor’s evidence, there is a considerably elevated risk of a heart attack if he travels by air. The doctor would not recommend that he travel by air.
He could also be transported by road but it would need the availability of the same level of care as if travelling by air. Dr Diu said the increased risk of a heart attack is lower than if travelling by air, but he would not recommend that the accused travel by road. He said the cost of an ambulance from New South Wales would be prohibitive.
In addition to the difficulties getting to Adelaide for the trial, Dr Diu said that, given his medical conditions, he could attend the trial in blocks of one hour with a maximum of four hours per day. Dr Diu said that, during the trial, there would need to be the availability of medical personnel, oxygen therapy and a contingency plan for transport to suitable medical care or hospital. He said the accused would need either a suitably qualified nurse or a medical practitioner at the level of a paramedic’s knowledge. Such a person would need to be in the vicinity of the courtroom. The accused is not presently dependent on oxygen. Dr Diu estimated that, with the stress of the trial process itself, there is a risk, a 40-50 per cent chance that something will happen during the trial.
Dr Diu said the accused does not have any difficulty with his intellectual functioning.
Dr Diu said that, as it was reported to him, the accused had heart attacks in 2001, 2002, 2004, 2012 and 2013. He said it appears there was some stability in his cardiac condition between 2004 and 2012.
Discussion
As mentioned, part of the argument on behalf of the accused is that the accused was originally in the jurisdiction and able to attend and participate in a trial. The prosecution successfully argued for a delay in the trial because it was waiting for the alleged victim to be paroled in Western Australia in November 2012 and thus available for trial. The accused eventually secured a trial listing but that had to be vacated when the accused had a relapse of his heart condition.
I do not consider that the actions of the prosecution could amount to or contribute towards a finding of an abuse of the processes of the Court. The listing of matters for trial, particularly on circuit, is not an easy task at the best of times. Not only are there limited sittings but some matters have priority because they have been in the list longer, have not previously been reached or perhaps because there is a statutory priority. Furthermore, the Court itself makes the decision to list or not list a matter for trial at a particular time. The prosecution’s actions, as outlined earlier, could not make out an abuse of process.
There would appear to be no doubt that the accused suffers from significant health issues irrespective of the increased risk of a heart attack that would be attendant upon travel to Adelaide by plane, ambulance or similar. There is clearly that increased risk if any mode of travel is undertaken. However, whatever the mode of travel, provided there is proper medical support of the type referred to by Dr Diu, it is not unreasonable to require it to be undertaken despite the dangers. His heart condition, although variable, has had at least one extended period when it has been stable. He does not need oxygen for the purposes of in‑home medical care. He has not required any extensive in-patient care aside from his admissions in October 2013. He is not bedridden or in need of a wheelchair. He gets around on an electric scooter and gets very short of breath if he walks 20 metres.
Again with appropriate medical support, he could sit through four hours of court sitting per day. He does not, so far as Dr Diu is aware, have any difficulty with intellectual functioning. The Court has been required from time to time to conduct trials where there are reduced sitting hours and special arrangements are made for the medical care of an accused. Indeed, the change in the laws to allow these historical sex charges to be prosecuted has led to the need for the Court to accommodate such trials. In my view, it would not offend the common humanity test to require the accused to attend for trial and stand trial: R v Jacobi[2]. I have undertaken the balancing exercise referred to in that case (para 55).
[2] (2012) 114 SASR 22 at paras 23-33, 86.
The cost of travel and the cost of the trial, both with appropriate medical support, remain a live issue. As mentioned, the accused is legally aided. Although this has not expressly been the subject of evidence, I have proceeded on the basis that the accused is not able to privately fund the cost of travel or medical oversight during the course of the trial.
I do not consider that any of the matters raised is a fundamental defect going to the root of the trial. They are practical matters going to whether the accused has the necessary financial support to attend for the purposes of the trial and medical assistance as it proceeds. Any delay is not a fundamental defect.
In my view, the application should be refused.
The obvious question is, where to from here. A trial date would be set well in advance. If the accused fails to attend a Bench Warrant may issue. In that situation, it would be up to the authorities to execute the warrant. That would involve extradition of the accused from New South Wales. It is difficult to predict what would happen from that point.
Application refused.