R v G, KS - [2013] SADC 15

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v G, KS
[2013] SADC 15
Ruling of His Honour Judge Cuthbertson
18 February 2013
CRIMINAL LAW
- APPLICATION FOR STAY OF PROCEEDINGS
Application to stay proceedings - Applicant charged with two Counts of Indecent Assault and one Count of Persistent Sexual Exploitation of a Child - Applicant aged 90 years - Applicant unfit to plead - Delay leading to ageing of the applicant such that he became unfit to plead - Proceedings permanently stayed
Evidence Act 1929 s 32M(2); Criminal Law Consolidation Act 1935 s 72A, Division 3 of Part 8A & s269M, referred to.
Ridgeway v R (1995) 184 CLR 19; Williams v Spautz (1992) 174 CLR 509; Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393; Jago v District Court of New South Wales (1989) 168 CLR 23; DPP v Shirvanian (1998) 44 NSWLR 129; Walton v Gardiner (1993) 177 CLR 378; R v Abdulla (2005) 93 SASC 208; Subramaniam v R (2004) 211 ALR 1; R v Hakim (1989) 41 A Crim R 372, considered.

R v G, KS
[2013] SADC 15

The applicant is presented on two Counts of Indecent Assault and one Count of Persistent Sexual Exploitation of a Child in respect of three complainants.
Application is made by the applicant to permanently stay the Information of the Director of Public Prosecutions of 5 December 2011 on grounds of substantial delay between the commission of the offending and a complaint to authorities, delay in investigation and commencement of proceedings and prejudice to the Defendant due to the deterioration of the defendant’s health due to age.
The offences are alleged to have occurred between 1966 and 1976 at a time when the three complainants were aged between 11 and 15 years.
It is conceded by the prosecution and the defence that the applicant is unfit to stand trial insofar as he is unable to understand the nature of the proceedings or follow the proceedings and is unable to provide rational instruction to his counsel.
If not stayed the proceedings will be an enquiry into whether the objective elements of the offences have been established pursuant to s 269M of the Criminal Law Consolidation Act.
The applicant was born on 24 September 1922. He is now 90 years of age.
The prosecution case is that the applicant owned a farm in Cockatoo Valley in the nineteen seventies. The complainants, then in their early teens, helped him from time-to-time on the farm.
The first complainant Ro, date of birth 30 November 1955, claims that he did some work for the applicant on the applicant’s farm. He stayed one night and slept in a small tent on the front lawn with the applicant. During the night the applicant indecently assaulted him.
The second complainant Ra, date of birth 3 April 1962, claims that every time he went to the farm the applicant indecently touched him. He speaks of several occasions where during the day they went to the applicant’s single bed where acts of indecent interference took place.
The third complainant J, date of birth 20 September 1961, claims that he met the applicant at the local table-tennis club and started to do some work for him. He stayed the night at the applicant’s house during one summer. They stayed in a tent in the front yard and during the night the applicant sexually interfered with him.
The relevant matters on this application for a stay of proceedings are as follows:
1The inordinate delay between the time of the offending and the making of the accusations to police.
2The inordinate delay between the making of the accusations to police and a decision by the complainants that they wished to pursue the matter to prosecution.
3The inordinate delay between the time the complainants informed the police that they wished to prosecute and the issuing of proceedings.
4The fact that during the period of the delay the applicant has suffered mental deterioration to the extent that he will no longer be in a position to give any relevant evidence on the issues which will be the subject of a hearing as to whether the objective facts have been proved and to that extent his ability to defend the proceedings is compromised.
Ro alleges sexual interference at some time between 1966 and 1971.
J alleges sexual interference between 1974 and 1975.
Ra alleges interference between 1974 and 1976.
The previous immunity from prosecution for stale sexual offences was abolished from 17 June, 2003[1].
[1] See s 72A CLCA
On 5 July 2004 one D, not a complainant, made a complaint of sexual interference against the applicant.
On 16 August 2004 D advised the police that he did not wish to proceed with the complaint and the file was closed.
On 15 October 2004 Ra made a complaint to the police against the applicant.
On 5 November 2004 Ra advised the police that he did not wish to proceed with the complaint, and the file was closed on 26 May 2005.
On 5 December 2007 Ro made a complaint alleging sexual interference by the applicant.
On 15 December 2007 Ro advised police that he did not wish to proceed with a prosecution.
On 5 May 2008 police spoke to Ro about making a complaint and on 27 July 2008 police spoke again to Ro and arranged to take a statement from him.
On 27 July 2008 police became aware that Ra and D had previously made complaints. They advised Ra, D and Ro as to the existence of other persons who had made complaints and Ro advised police that he wished to proceed.
On 10 August 2008 D advised police that he wished to proceed.
On 21 October 2008 police contacted J, a complainant relating to Count 2, who advised that he wished to make a complaint.
Thus by 21 October 2008 police had complainants wishing to proceed being Ro, D, Ra and J.
The first relevant period of delay is between 2004 when certain initial complaints were made and 2008, a period of some 4 years. This is against a background that the offending allegedly occurred some 32 to 42 years ago.
By this stage the applicant was 86 years of age.
On 19 June 2009 the applicant was interviewed about the allegations and essentially claims not to remember any sexual activity.
On 1 September 2010 an Information was filed in the Elizabeth’s Magistrates Court.
The second period of delay is between October 2008 and September 2010 when proceedings were issued – a period of approximately 2 years and a significant delay given the age of the allegations and the age of the applicant.
By this stage the applicant was 88 years old.
On 9 December 2010 D advised police that he did not wish to proceed with a prosecution.
On 4 August 2011 the applicant suffered injuries after a fall at home. After being treated at the Royal Adelaide Hospital he was transferred to a high care facility and his mental faculties have undergone significant deterioration since.
On 2 November 2011 the applicant was committed to trial in the District Court.
Again the relevant delay is some 14 month, not an inordinately long delay in itself but highly significant given other delays that have already occurred and the age of the applicant.
On 22 May 2012 the matter was listed for this stay application.
The applicant is now unable to take any useful part in a trial as to the issue of the proof of the objective elements of the offence and he is virtually confined to his room in a high dependency facility and likely to deteriorate in physical and mental condition in the future.
From October 2008 the authorities had several complainants who were ready, willing and able to proceed with a prosecution. It was, however, three years before the applicant was committed for trial. During this time he went from 86 years old to 89 years old and suffered a significant deterioration in his mental condition, especially as a result of the fall on 4 August 2011.
Principles in relation to stay applications
The power to order a stay arises due to the principle that in some circumstances it would be inimical to a court’s sense of justice to allow proceedings to continue and that allowing proceedings to continue would thus tend to undermine the public confidence in the Court[2].
[2] See Ridgeway v R (1995) 184 CLR 19 at 60 per Toohey J
The onus is on the applicant to demonstrate the existence of facts which have the capacity to enliven the discretion and to provide the basis for the exercise of the discretion[3].
[3] See Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ
There is a prima facie right in the party invoking the jurisdiction of the Court to have that jurisdiction exercised[4].
[4] See Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399 per Deane J
The discretion to stay will only be exercised in rare and exceptional circumstances[5].
[5] See Jago v District Court (NSW) (1989) 168 CLR 23 per Deane CJ at 60, Gandron J at 76
A Court which grants a stay without sufficient reason abuses itself by declining to exercise its constitutional function of determining disputes[6].
[6] See DPP v Shirvanian (1998) 44 NSWLR 129 at 134
The existence of facts having the capacity to enliven the discretion to stay does not automatically mean the discretion must be exercised by granting a stay. A determination must be made as to what the interests of justice require[7].
[7] See Walton v Gardiner (1993) 177 CLR 378 at 395-396
The considerations to be weighed in the balancing act include the legitimate public interest in the determination of serious charges, the conviction of the guilty, fairness to the accused and the maintenance of public confidence in the administration of justice[8].
[8] See Jago v District Court (NSW) at 33 per Mason CJ
The categories of cases where it is appropriate to stay proceedings are not fixed and it is not a power “the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, an abuse of process on the other.”[9]
[9] See Jago v District Court (NSW) at 44
Where it is alleged that an accused cannot be tried fairly it must also be demonstrated that the suggested unfairness cannot be negatived in the sense that there are no means available (such as appropriate directions and more flexible sitting hours) to overcome the particular difficulty said to give rise to unfairness[10].
[10] See Jago v The District Court at 34 per Mason CJ
The mere fact that an applicant is not fit to plead is no ground for a stay as an alternative mechanism to a trial is available through Division 3 of Part 8A of the Criminal Law Consolidation Act 1935.[11]
[11] See R v Abdulla (2005) 93 SASR 208
The initial delay between the offending and the initial complaints to the police
There has been a significant initial delay between the time of this alleged offending and the time when the matters were first brought to the attention of the authorities.
The legislature has recognised that in matters of sexual offences there may be a significant delay between the time that an offence occurs and the time that it is reported to the authorities hence the direction should be given that juries should not draw an adverse inference from a failure to make a recent complaint.[12]
[12] See s 34M(2) of the Evidence Act 1929
In relation to children it is also recognised that there are various factors including their lack of sophistication, their youthfulness, lack of understanding etc which may mean that there is a significant delay before they report any matter to authorities.
Further, recognising the fact that many people are reluctant to come forward with complaints involving sexual matters due to fear, embarrassment etc, the effect of the Statute of Limitations was abolished by the authorities in June 2003[13], thus permitting the revival of actions previously statute barred.
[13] See s 72A of the Criminal Law Consolidation Act, 1935
It follows, therefore, that I do not regard the delay between the time of the alleged offending and the time of the complaining to police per se as of any great moment.
Delay between initial complaint and decision by complainant to proceed
There has been a significant delay between the time the complainants initially brought these matters to the attention of the police and the time when they decided to continue with proceedings.
I accept the evidence of Senior Constable Kittel that there were significant policy reasons why police do not wish to pressure people making tentative complaints to proceed to trial with those complaints. Those policy factors include the need not to frighten or deter individuals who are already somewhat diffident and fearful about coming forward with embarrassing allegations. I understand that, if at the moment that they make a tentative cry for help or complaint they are put under intense pressure to proceed with a prosecution it may well deter many people from coming forward.
On the other hand, it must not be forgotten that the discretion to prosecute is in the hands of the police and Director of Public Prosecutions and that the prosecution of crime is not a process between perpetrator and alleged victim but is a matter in which the decision to prosecute is very much a matter in the public interest and to be made according to the public interest and not the private interest of individuals.
It troubles me that in this case there was not even the slightest encouragement or request to the complainants to consider proceeding with the matter. One can understand a decision not to prosecute upon the vehement request of a diffident complainant who has come forward but it is another thing for the authorities not even to mildly suggest that the complainant might assist the interests of the administration of justice by agreeing to give evidence.
One complainant indicated that he would proceed if there was another person also willing to proceed against the Defendant[14]. One might have thought that the authorities could have facilitated the prosecution process by indicating that there was such a person in existence yet they did not do so. They might have pointed out that the Defendant’s age was so extreme that if there was to be a prosecution it would have to proceed sooner rather than later.
[14] See page 3 of VDP3, entry 10 of 51
There might have been some sort of assessment made as to whether the complainant was or was not in a psychological position to cooperate in a prosecution.
In any event the immunity for out of time prosecution was not abolished until 17 June, 2003.
Delay after complainants agree to prosecute
As early as 27 July 2008 Ro indicated that he was keen to proceed. By 30 September 2008 Ra was giving a detailed statement and by 21 October 2008 J advised that he wished to make a complaint.
By now the applicant was 86 years old. With instructions from the complainants to proceed, the police should have acted with some alacrity.
Yet it was not until 19 June 2009 that police attended and interviewed the complainant.
It is apparent from the Transcript of Interview that they regarded his claimed lack of memory of the complainants with scepticism. Yet it was not until another fifteen months later that they filed proceedings in the Elizabeth Magistrates Court.
Proceedings having been issued in the Elizabeth Magistrates Court on 1 September 2010, declarations were first filed relating to only two complainants on 2 March 2011. Further declarations were filed on 6 July 2011.
On 4 August 2011 the applicant suffered a significant physical deterioration following a fall at his house.
It is true that there was no appearance by the applicant on 15 December 2010 but I note that he signed a bail agreement on 13 January 2011.
There were also failures to attend after his fall on 4 August 2011.
The delays caused in the Magistrates Court by the failure to attend of the applicant are insignificant.
Whereas none of the earlier delays mentioned can be blamed on the prosecuting authorities it is difficult to see why they ought not take some responsibility for the delay between July 2008 when they had a complainant keen to proceed with a prosecution and November 2011 when the applicant was committed to trial in the District Court.
This delay of some 3 years is against a background of delays from the time the offences are alleged to have occurred and, given the age of the applicant, is of great significance.
Over this period of time the applicant has deteriorated mentally, which is not surprising given his age, from being in position where he might have been able to have partaken in a trial in which he could assist himself and usefully assist in conducting his defence to the present state where, I have formed the impression that, he will be of absolutely no assistance to his counsel in defending the charges.
The applicant’s mental state
A report from the applicant’s general practitioner of 2 December 2011 speaks of the applicant’s mental state having undergone significant deterioration. He has suffered a loss of alertness and is significantly compromised and has lost his ability to assess and organise for himself.
He was seen by Mark Reid, a neuropsychologist, on 10 February 2012 for an assessment as to his fitness to plead.
It reveals significant cognitive impairment. There is a limited capacity to deal with and process information. There is a loss of short term memory. There is also a real risk that participation in a trial may cause further deterioration in the applicant’s mental state.[15]
[15] See T45
Etiology is likely to be of a cerebro-vascular nature. Importantly Mr Reid expresses the view that the applicant does not have the ability to provide rational instructions to his counsel and would be unable to understand the nature of the proceedings or follow the evidence in a legal trial.
I do not believe he would be able to recall components of evidence provided and therefore be unable to integrate those components and make reasoned decisions during the course of a trial.
There is little likelihood of improvement and indeed every likelihood of further deterioration.
In addition to the evidence from Mr Reid and Dr Richards together with his solicitor, Ms Ballans, I am entitled to rely on my assessment of him during the time he was in Court. I was unable to gain his attention either by speaking to him or by making signs. During the time he was in Court he appeared to be totally oblivious to the proceedings and gave no indication that he was following them at all or understood that they concerned him. I formed the view that his condition was significantly worse than described by his general practitioner and by Mr Reid.
It is agreed between the prosecution and the defence that he is indeed unfit to plead.
Should I decline to stay the proceedings it is likely that this matter will proceed as a trial on the objective facts pursuant to s 269M of the Criminal Law Consolidation Act.
Is the applicant disadvantaged in a trial on the objective facts?
A trial on the objective facts would necessarily involve evidence being given about events that occurred roughly 40 years ago. The applicant, when interviewed by police on 19 June 2009, in broad terms claimed not to remember the alleged incidents when put to him by police officers.
The prosecution say that the applicant is not particularly disadvantaged because he has had the opportunity to state his case namely that he cannot remember. The difficulty with that is that what an accused says in an interview which is exculpatory may receive a direction that it carries less weight than sworn evidence.[16] The prosecution may not even lead the evidence. In any event the interview was without forewarning and the applicant’s answers indicated to me he was somewhat nonplussed. One might have expected his long term memory to have been better on mature reflection. Far from helping him, in my view, the interviews would hinder his case before the trier of fact.
[16] See R v Golding and Edwards [2008] 100 SASR 216 at 236.

The applicant would have no way of remembering what a witness has said against him during evidence and bringing to the attention of those instructing him where there is an answer to the allegation or evidence tending to disprove the allegation
It is true that the matter can, in part, be dealt with by directions to the jury or trier of fact to have regard to his loss of memory and his general mental state and that could go some way to making the trial fairer.
Having observed the applicant, however, I am convinced that in a trial concerning events alleged to have occurred some 40 years ago and given the applicant’s undoubted short term memory loss and, my own observations, there will be an almost complete inability to help those instructing to defend him. The trial will be unfair. It will be a contest between three people who claim to remember events against one who cannot remember and cannot point to things making less likely the assertions of the complainants.
In my view the unfairness is the product of the delay and in particular the delay between the period when complainants advised police they wished to proceed and the matter being committed to the District Court.
The relevance of the availability of Part 8A procedure
In my view the case of R v Abdulla[17] can be distinguished. It is not the lack of mental competence of the applicant that brings into play the discretion. The Full Court in Abdulla has observed that this may be dealt with under the Part 8A procedure in the Criminal Law Consolidation Act.
[17] See (2005) 93 SASR 208
In Subramaniam v R[18] the High Court considered the issue of a stay application on the basis of mental incompetence in the context of the equivalent New South Wales legislation. The Court in a joint judgment of Gleeson CJ and McHugh, Kirby, Hayne and Callinan JJ stated as follows,
[26] It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner, the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
[27] Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment". Deane J in Jago posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or admissions; failure to hold committal proceedings; the absence of legal representation of an indigent person facing serious criminal proceedings; and, unreasonable delay.
[28] Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a "limiting term" of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason to construe and apply the Act otherwise than according to its tenor.
[29] No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves.
[18] See (2004) 211 ALR 1 at 9
In R v Hakim[19] it fell to the Court of Appeal of New South Wales to pronounce on the appropriateness of a stay when there had been a delay of 2 ½ years before proceedings were commenced charging the respondent with Conspiracy and during which time his health deteriorated.
[19] See (1989) 41 A Crim R 372
Kirby P and Clarke JA dismissed an application for leave to appeal by the prosecutor. Clarke JA in agreeing with Kirby P said,
In my opinion the evidentiary material supported His Honour’s conclusion that although the delay in the prosecution was not culpable the deterioration of the respondent’s very grave medical condition in the period between July 1984 (when the New South Wales police received the tapes) and the laying of the Informations justify the making of a Stay Order. In this respect it is appropriate that I observe that the respondent’s medical condition in its deterioration both prior to and following the institution of the proceedings was obviously a relevant consideration. No doubt the weight to be accorded to that consideration will vary depending upon the circumstances under consideration[20] ...

[20] See page 377
Were it not for the inordinate delay by the prosecution from the time when a complainant determined to go ahead with a prosecution i.e. 27 July 2008, I would not have considered, on the authority of Abdulla and Subramaniam, that it was appropriate that the proceedings be stayed.
The unfairness and the matters which, in my view, point to the appropriateness of the stay proceedings are that the authorities, against a background of inordinate delays already, caused by the length of time taken to complain, and the initial decision of complainants not to proceed, should have acted with haste, from the time the complainants indicated that they wished to go ahead with legal proceedings.
It was imperative, not only due to the previous delay, but more significantly due to the age of the applicant. It must have been obvious to the authorities that given the applicant’s age his physical and mental condition was highly likely to deteriorate and that such deteriorate would cause him difficulty in defending himself in any trial. That is the very thing that happened. The significant deterioration in mental condition occurred during the period of delay post July 2008.
In my view it is also not inappropriate to observe that the applicant is no danger whatsoever to the public. He is virtually confined to a room in a high dependency institution.
Given the history of delays in this matter, and in the particular delays after the complainants indicated they wished to proceed, for which the authorities must take responsibility, and given the inevitable deterioration in the mental state of the applicant occasioned by these delays, in my view it would be unfair to permit the prosecution to proceed.
The unfairness arises from a contribution of the long delay caused by the prosecuting authorities and the inevitable deterioration in the applicant’s mental and physical state which the authorities should have known was likely to occur and the inability of the applicant now to properly defend himself in his present parlous physical and mental condition.
For the above reasons I ordered that the proceedings be permanently stayed.