R v Daniel Peter Richards No. SCCRM 94/333 Judgment No. 4889 Number of Pages 9 Criminal Law and Procedure

[1994] SASC 4889

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MULLIGHAN, J

CWDS
Criminal law and procedure - application for permanent stay of proceedings - loss of memory of accused due to his own act caused by brain damage in consequence of attempted suicide by hanging - unable to recall life events at the time of alleged sexual offences - perceived inability to have fair trial - accused fit to plead - no grounds for permanent stay. Jago v District Court (NSW) 168 CLR 23 at 29; Dietrich v The Queen (1992) 177 CLR 292 at 299; Russell v HM Advocate (1946) SC(J) 37; R v Podola (1960) 1 QB 325 at p355 followed and R v Von Einem (1991) 55 SASR 199 at 206-207 referred to.

HRNG ADELAIDE, 10-11 November 1994 #DATE 9:12:1994

Counsel for Crown:        Mr S A Millsteed

Solicitors for Crown:     DPP (SA)

Counsel for accused:     Mr C J Kourakis

Solicitors for accused: ALRM

ORDER
Publication of reasons for decision.

JUDGE1 MULLIGHAN J The applicant was charged with four counts of unlawful sexual intercourse with a girl aged 15 years and one count of indecent assault upon the same girl. He brought an application for a permanent stay of the criminal proceedings on the ground that a fair trial was not possible due to loss of memory of his life events at the time the alleged offences are said to have occurred. He was due to come to trial within a short time of the hearing of the application. After the hearing I dismissed the application and intimated that I would give reasons for my decision after the trial had been completed and I now do so.

2. It is alleged that the offences occurred at Ceduna on or about 9th, 13th, 15th and 16th September 1993. The girl was well known to the applicant who is aged 33 years. He worked with her father and was living in a separate flat at her home. He was caring for her during a prolonged absence of her father from the house due to employment.

3. It is unnecessary for present purposes to describe the nature of the alleged sexual conduct in any detail but it is claimed to involve digital and penile penetration of the vagina, fellatio and indecent touching. It is not conduct the nature of which could have been misunderstood by the girl or, in normal circumstances, easily forgotten by the applicant.

4. On 9th November 1993 the girl told a counsellor at school of what she alleges the applicant had done to her and her father was informed. The police were contacted and an investigation by them commenced. Police officers spoke to the applicant on 13th November 1993 at the home of his mother at Thevenard. They told him, in a general way, of the allegations made by the girl which he denied. I do not think his answers should be interpreted as admissions of any indecent conduct although that may be a question for the jury should a trial proceed. The applicant refused to answer further questions upon taking legal advice and later was arrested and released on bail. At that time he was charged with counts of rape but there is now no intention to proceed with those charges.

5. He returned to the home of his mother and attempted suicide by hanging. There is evidence to suggest that he may have been suffering from depression at the time and that there were other material pressures upon him which contributed to that condition but it would seem that the fact of having been charged with such serious offences had a severe impact upon his emotional state. He was severely injured in the attempt and upon being found was admitted to the Murat Bay Hospital and then transferred to the Royal Adelaide Hospital.

6. He remained totally unconscious for about eight days and then gradually regained consciousness over a period of some days. By 23rd November he was conscious but was not fully orientated. Thereafter his physical state improved but he suffered brain damage due to anoxia caused by strangulation in his attempt on his life.

7. He was assessed by Ms Denson, a neuropsychologist on 8th December 1993 and on 18th January 1994 in order to determine the extent of brain impairment which he had suffered. These assessments were undertaken at the request of the medical registrar in charge of the applicant at the hospital and were in no way for medico-legal purposes which tends to allay any suspicion that the applicant has feigned amnesia as a refuge from prosecution. Ms Denson conducted various routine psychological tests and concluded that he was probably not intellectually retarded or disabled and was of normal intelligence prior to the hanging incident but was displaying severe anterior grade memory impairment with deficits in both storage and retrieval of information, but he had not suffered complete amnesia. She did not investigate whether he had suffered retrograde amnesia. She again assessed the applicant on 12th May 1994 and 17th May 1994 at the request of his solicitor. On both occasions psychological testing was compromised as the applicant was both distressed and depressed. Nevertheless testing was undertaken. Ms Denson is unable to say whether the results of tests administered by her were affected by the applicant's aboriginality, but on the assumption that they were not so affected, they revealed that there was impairment of higher cognition, ie abstract thinking and problem-solving, as well as psychomotor slowing and impaired concentration and a very severe prominent memory disorder all, in her view, consistent with the anoxia injury which he had suffered. Tests administered to assess his remote memory up to a few years prior to the hanging incident revealed that such memory was intact. There was no assessment of his memory during the few years leading up to that incident due to his distressed state and because he was also being seen by a psychiatrist. Nevertheless Ms Denson expressed the opinion that it would be rare for anterior grade amnesia such as suffered by the applicant to exist in the absence of retrograde amnesia.

8. Dr Branson, a forensic psychiatrist, saw the accused on various occasions, the first of which was on 15th February 1984. He also carried out various tests upon the applicant to ascertain the extent and nature of any brain damage and any resultant amnesia. He concluded that the applicant has severe memory impairment and also that he was depressed. In general terms he reached the same conclusions as Ms Denson. Whilst I accepted that the nature and extent of the impairment of the memory of the applicant would have to be determined by the jury should the trial proceed, I concluded, for the purpose of resolving the issues raised by the application, that the applicant did sustain brain damage due to anoxia caused by the hanging incident and in consequence suffered both anterior grade and retrograde amnesia to such an extent as not to be able to remember many of his life events at the time the alleged offences are said to have occurred. I had some difficulty in determining precisely the extent of his loss of memory of events at relevant times due to inconsistencies in the applicant's evidence as to what he could remember but I was not prepared to conclude that such inconsistencies were due to a lack of truthfulness. He has suffered brain damage and features of his demeanour in the witness box, such as delay in answering questions and inconsistencies in his evidence may be symptoms of that damage. It is perhaps not always readily apparent whether a person with a memory deficit is recalling what he remembers of events or what he has been told about them. In all the circumstances I considered it appropriate to approach the application on the basis that the applicant had suffered retrograde amnesia and could not recall events and matters relating to the subject matter of the charges. His condition is now stable and it is highly unlikely that his memory will improve to any significant extent.

9. The case against the applicant depended upon the evidence of the girl. The alleged sexual acts are said to have occurred in private and there is no corroboration of her story. There is some evidence of complaint and distress which, if admissible, is capable of proving that she behaved consistently with the applicant having behaved towards her in a sexual manner but, by and large, it would be a case of her word against his, if he could give relevant evidence. The evidence of the applicant on this application was that he would not say whether he had sexual intercourse with the girl or indecently assaulted her as alleged or at all because he simply could not remember.

10. It is in these circumstances that the applicant claims his trial could not be fair and that there should be a permanent stay on the ground that the Court will prevent its process being used in a manner which gives rise to unfairness.

11. The application for a stay is founded upon the right of an accused in the criminal process to receive a fair trial. This not a case of alleged abuse of the process of the court due to any conduct or inaction on the part of the prosecution. As Mason CJ said in Jago v District Court (NSW) 168 CLR 23 at p29:
    "Moreover, objections to the discretion to prevent
    unfairness give insufficient weight to the right of an
    accused person to receive a fair trial. That right is one
    of several entrenched in our legal system in the interests
    of seeking to ensure that innocent people are not convicted
    of criminal offences. As such, it is more commonly
    manifested in rules of law and of practice designed to
    regulate the course of the trial: see Bunning v Cross
(1978) 141 CLR 54; Reg v Sang (1980) AC 402. But there is
    no reason why the right should not extend to the whole
    course of the criminal process and it is inconceivable that
    a trial which could not fairly proceed should be compelled
    to take place on the grounds that such a course did not
    constitute an abuse of process."

12. He went on to consider whether the power to stay rested upon an abuse of the Court's process and concluded, at p31:
    "Ultimately, it does not matter whether the problem is
    resolved in this way, by invoking a wide interpretation of
    the concept of abuse of process, or by saying that courts
    possess an inherent power to prevent their processes being
    used in a manner which gives rise to injustice. In either
    event the power is discretionary, to be exercised in a
    principled way, and the same considerations will govern its
    exercise. And in each case the power will be used only in
    most exceptional circumstances to order that a criminal
    prosecution be stayed. I have already noted that a similar
    result was reached by taking a broad view of the concept of
    abuse of process in Reg v Derby Crown Court; Ex parte Brooks
    (1984) 80 CrAppR 164. If the distinction matters, I would
    prefer to regard the power as an incident of the general
    power of a court of justice to ensure fairness."

13. Mason CJ acknowledged, at p33, that in the "safeguarding of the interests of the accused ... the touchstone in every case is fairness" and the test of fairness "... involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton; Sang; Carver v Attorney-General (NSW) (1987) 27 ACrimR at 31, 32. He went on to say:
    "The factors which need to be taken into account in deciding
    whether a permanent stay is needed in order to vindicate the
    accused's right to be protected against unfairness in the
    course of criminal proceedings cannot be precisely defined
    in a way which will cover every case. But they will
    generally include such matters as the length of the delay,
    the reasons for the delay, the accused's responsibility for
    asserting his rights and, of course, the prejudice suffered
by the accused: Barker v Wingo (1972) 407 US 514; Bell v
Director of Public Prosecutions (1985) AC 937, as explained
in Watson (1987) 8 NSWLR 685, and Gorman v Fitzpatrick
(1987) 32 ACrimR 330. In any event, a permanent stay should
    be ordered only in an extreme case and the making of such an
    order on the basis of delay alone will accordingly be very
rare: Re Cooney (1987) 31 ACrimR 256, at pp263-264."

14. Further, he said that "to justify a permanent stay of criminal proceedings, there must 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': Barton, p34. Brennan J, at p46, accepting that the court had power to stay proceedings, said that power has a dual purpose "to ensure a fair trial ... (and) to prevent an abuse of process". Deane J, at p56, stated as the fundamental principle, "the central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law" and acknowledged, at pp57-58, the power of the court to stay criminal proceedings where a trial would necessarily be unfair to the accused. Gaudron J also accepted the power to stay proceedings where the trial would necessarily be unfair.

15. The right of an accused to a fair trial according to law was again acknowledged in Dietrich v The Queen (1992) 177 CLR 292, per Mason CJ and McHugh J at p.299; Deane J at P330; Toohey J at p353; Gaudron J at p362. It has been said to be more accurately expressed as the right not to be tried unfairly. Again it was accepted that the Court has "power to stay proceedings in order 'to prevent an abuse of process or the prosecution of a criminal proceeding ... which will result in a trial which is unfair'", at p300. The majority, Mason CJ, Deane, Toohey, Gaudron and Mc Hugh JJ held that this power extends to a case in which representation of the accused by counsel is essential to a fair trial.

16. It is contended that the applicant cannot have a fair trial due to his lack of memory of events occurring at the time of the alleged subject matter of the charges against him. Mr Kourakis submitted that it is inconceivable that the appellant could have a fair trial when he could not recall matters which may afford a defence or assist in the preparation and presentation of a defence. Furthermore, he argued, if the matter proceeds to trial the focus may be upon the genuineness or otherwise of the claim of amnesia and not on the issues raised by the prosecution case which would also result in unfairness. The accused would in a sense, be at the mercy of the purported strength of the prosecution case which could not be effectively challenged by a defence based upon a memory of events which may afford a complete answer to the charges. Without question the applicant will be disadvantaged in the preparation for, and at, his trial. In cases of this nature even a different version of events peripheral to those events which are the subject of the charges could lead to a lack of confidence in the reliability and accuracy of the evidence of the alleged victim so that proof beyond reasonable doubt could not be achieved.

17. Nevertheless lack of memory on the part of an accused can not, in my view, justify the extreme step of a permanent stay of a criminal proceeding particularly when it is in no way caused by, or associated with, any conduct on the part of the police or the prosecuting authorities. Loss of memory by "a sane and otherwise normal" person has never been regarded as a basis of a plea in bar to a criminal charge: Russell v H.M. Advocate (1946) SC(J) 37 approved in R v Podola (1960) l QB 325 p355. In Russell the Court of Justiciary was concerned with the condition of hysterical amnesia and whether in consequence the accused was unfit to plead. It was held that the inability to remember events relating to the alleged crime did not in itself render a person unfit to plead. Lord Sorn said, at p40:
    "She (the accused) is able to instruct, in my opinion, a
    defence, even though that defence has the peculiarity of
    including in its features that the accused has forgotten the
    period of the events dealt with in the charge ... I am
    unable to see that unfairness should follow from this
    situation. The Crown must prove their case, and must prove
    it to the satisfaction of the jury, and the accused can tell
    the jury that she has no recollection of these events."

18. On appeal these observations were supported by the Lord Justice-Clerk (Lord Cooper) and the relevant passages of his judgment were approved in Podola, at pp355-356:
    "In the judgment of the court the Lord Justice-Clerk
    supported Lord Sorn, and in the course of his judgment said:
    'The only grounds associated with the abnormal personal
    condition of the accused which our law and practice have
    ever recognised as the basis of a plea in bar are (a)
    insanity (either in the ordinary sense, or in the special
    sense of the Lunacy (Scotland) Act, 1857, s.87),' where the
    words are similar to the words of the Act of 1800, 'and (b)
    the condition of a deaf mute. There is no trace in either
    Scotland or England of a plea in bar founded upon loss of
    memory by a sane and otherwise normal accused person.'
    Later he said: 'I do not consider that they,' that is, the
    dicta which are found in Brown's case, 'were intended to be
    understood, or are capable of being understood, literally as
    applying to the case of a sane prisoner ... for so to read
    them would come near to paralysing the administration of
    criminal justice.' Still later he said: 'The conclusions
    which I feel bound to draw are that loss of memory may be an
    important element in leading to the conclusion that a panel
    (sic) is insane ... But if it falls short of that, loss of
    memory in a person otherwise normal and sane plays its full
    part, if it is sufficiently proved, in increasing the onus
    on the Crown, and in raising doubts to which it may be the
    duty of the jury to give effect in a verdict of acquittal
    after investigation of the whole case. But as our law
    stands, it can have no further or other effect.' As we
    understand it, the words 'in increasing the onus on the
    Crown' do not mean that strictly the onus is any greater,
    but that a judge should point out to a jury that they must
    take into consideration carefully the fact that the accused
    cannot remember the events."

19. The reference to Brown's case is to H.M. Advocate v Brown (1907) SC (J) 67 where the Lord Justice-General (Lord Dunedin) referring to "insanity" in the context of fitness to plead said, at p77:
    "It means insanity which prevents a man from doing what a
    truly sane man would do and is entitled to do - maintain in
    sober sanity his plea of innocence, and instruct those who
    defend him as a truly sane man would do ... But that is not
    enough. There is something which is not generally asked
    about, and that is that the person who is giving these
    instructions should not only intelligently, but without
    obliteration of memory as to what has happened in his life,
    give a true history of the circumstances of his life at the
    time the supposed crime was committed".

20. This approach was rejected in Russell and in Podola and, as was observed in Podola (p354) Brown was of unsound mind and incapable of pleading to the indictment regardless of loss of memory.

21. Also loss of memory, per se, in a non-insane person is not regarded as a ground of unfitness to plead: Russell and Podola. The question is whether by means of some physical or mental condition the accused is unable to follow the proceedings of the trial and to make a defence in these proceedings: Kesavarajah v R (1994) 123 ALR 463 per Mason CJ, Toohey and Gaudron JJ at p473. Their Honours accepted the standards applied in R v Pritchard (1836) 7 Car and P 303 and as expressed by Smith J in R v Presser (1958) VR 45, which require the ability "(1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge".

22. The evidence of Dr Bransen and, indeed of the applicant himself establishes that the applicant does not fall within any of these criteria. He is well able to make a defence in all of these respects.

23. The issue on this application is whether the recent developments of the law of criminal procedure in this country as to the circumstances in which a stay of criminal proceedings is justified may be extended to the situation where a non-insane accused is unable to remember "the circumstances of his life at the time the supposed crime was committed". It is acknowledged that the courts "have asserted that the categories of cases in which the power to grant a permanent stay should be exercised are not closed and the power is available whenever it would be unfair to the accused to permit the prosecution to proceed ...": Jago per Brennan J at p53 and the cases therein cited.

24. It is impossible not to be sympathetic to any person who is driven to attempt suicide for whatever reason and nothing which I say should be construed otherwise but the fact remains that the loss of memory of the applicant was occasioned by his own conduct. My researches, and those of counsel, have not been able to find any case where a prosecution has been stayed because of a perception that an accused person may not have a fair trial due to his own deliberate act. In R v Von Einem (1991) 55 SASR 199 Duggan J had occasion to consider many of the cases until that time where a stay of criminal proceedings was considered: see pp206-207. None of them was concerned with perceived unfairness resulting from conduct of the accused.

25. Whilst it must be acknowledged that criminal proceedings may be stayed in circumstances where the perceived unfairness is not due to any conduct on the part of the prosecution, Dietrich is an example, it has not been suggested that an accused person may avoid criminal responsibility due to likely unfairness the cause of which is self-inflicted. Indeed, in the delay cases, whether the conduct of the accused has contributed to the delay or "whether the accused has pressed for expedition in a manner consistent with the anxiety and concern he is said to be suffering ..." are matters going to whether the stay should be ordered: Jago per Mason CJ at p32 and Deane J at pp60-62. In Dietrich the stay was ordered because the accused was without legal representation through no fault of his own: Mason CJ and McHugh J at p315 where they summarised the common ground in the view of the majority.

26. There is also the balancing exercise discussed in Jago, per Mason CJ at p33, per Deane J at p61 and per Toohey J at p72. Balancing the purpose of criminal proceedings which "generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment": Jago per Brennan J at p47, against the interest of the accused in having a fair trial, the possibility of which is compromised to some extent by his self inflicted amnesia does not, in my view, lead to the conclusion that the trial must be unfair regardless of any steps which may be taken by the trial judge to ovecome the perceived unfairness. As was pointed out in Podola, the jury must be directed to take into consideration carefully the fact that the applicant cannot remember the relevant events if they conclude that such lack of memory is a reasonable possibility.

27. The criminal courts frequently encounter situations where accused persons cannot remember the circumstances of alleged criminal activity due to self induced intoxication. An accused could be injured in a road accident whilst fleeing the scene of the crime and suffer brain damage with resultant amnesia. Loss of memory per se has never been regarded as an obstacle to a fair trial in the relevant sense.

28. During the course of argument reference was made to DPP v Hakim, unreported 16.5.88, where Lee J affirmed the decision of a Magistrate at the stage of the preliminary hearing to stay the proceedings as they constituted an abuse of process. There had been considerable delay in bringing the proceedings by which time the defendant had suffered serious ill health. He had suffered numerous medical diseases which would shorten his life and which had a detrimental psychological effect upon him and had affected his memory for both recent and past events. Left ventricular thombros associated, on two occasions, with thrombo-embolism to his central nervous system produced loss of memory following cardiac surgery. It was unlikely that his physical health would permit him to stand trial if committed for trial. His health was likely to deteriorate further. The stay was affirmed because to require him to stand trial "would be out of accord with common humanity when the fact is also that he has already to some extent suffered prejudice in regard to his memory from the passage of time between the commission of the alleged offence and now": p9.

29. Clearly Hakim is not a case where a permanent stay was ordered on the ground of memory loss. There had been substantial delay during which the accused's health had deteriorated drastically and the memory loss was but an illustration of an aspect of the prejudice which he would have suffered if forced to trial. The ground of the stay was, in effect, the abuse of process caused by the delay. Hakim's case is of no assistance in the resolution of the issues on this application.

30. Before parting with this matter, I mention the contention of Mr Millsteed that where an accused makes an application for a permanent stay based upon lack of memory even though not insane, unless the accused is unfit to plead the trial must proceed. I do not accept that contention. It is difficult, but not impossible, to envisage a situation whereby an accused person may not have any memory of relevant events due to brain damage through no fault of his own and the circumstances could justify a stay of the proceedings. I do not want to speculate as to how such circumstances may arise, but as the categories of cases in which a stay may be justified are not closed, I suppose they could possibly include a case where the loss of memory is caused by brain damage inflicted by the deliberate act of a co-accused in unusual circumstances or by an assault by an over zealous police officer. There is no reason to suppose that an accused person should be denied consideration of an application for a stay on account of abuse of process or because he could not have a fair trial, merely because he was fit to plead.

31. In my view the circumstances did not justify the extreme step of a stay of the proceedings and the applicant must stand trial despite his memory loss. I concluded that the jury would have to consider the extent of that loss and it would be necessary to give directions to the jury as to the significance of the memory loss such as the jury found it to be.