R v Hugh Edward Murray

[2011] NSWDC 258

District Court

New South Wales

Medium Neutral Citation:	R v Hugh Edward MURRAY [2011] NSWDC 258
Hearing dates:	20 June 201125, 27-29 June 2011
Decision date:	29 July 2011
Before:	GD WOODS QC DCJ
Decision:	Permanent Stay Granted
Catchwords:	Fitness To Be Tried Permanent Stay Legal History
Legislation Cited:	Mental Health (Forensic Procedures) Act 1990
Cases Cited:	Jago v District Court of NSW (1989) 168 CLR 23 Rogers v R (1994)181 CLR 251 Walton v Gardiner and Ors (1993) 177 CLR 378 R v Smith and Ors [1995] 1 VR 10 R v WRC [2003] NSWCCA 394 DPP v Shirvanian (1998) 44 NSWLR 129 R v Hakim (1989) 41 A Crim R 372 Subramaniam v R (2004) 211 ALR 1
Category:	Principal judgment
Parties:	Hugh Edward MURRAY (Appellant) Regina (Crown)
Representation:	Mr A Charleston (DPP) Mr E Balodis (Crown) Mr G Walsh (Appellant)
File Number(s):	DC 2009/00063315

Judgment

1. HIS HONOUR: The accused is charged with sexual offences in the nature of indecent assault, relating to alleged conduct in the 1960's and 1970's involving schoolboys.

1. The accused Hugh Edward Murray has been found unfit to be tried on 9 September 2010, and on 1 December 2010 the Mental Health Review Tribunal determined that he is unlikely to become fit for trial within the twelve months following the finding of unfitness.

1. The DPP now seeks a special hearing of the charges, in accordance with the Mental Health (Forensic Procedures) Act 1990.

1. By Notice Of Motion the accused seeks a permanent stay of the proposed special hearing. Alternatively, he seeks a temporary stay of a period sufficient to permit the accused to undertake various tests and possible treatments being currently considered by his treating cardiologist, Professor Kiat.

1. There is a power in the District Court to make orders conditionally or permanently staying proceedings before it. In Jago v District Court of NSW (1989) 168 CLR 23 Mason CJ said:

"It is clear that Australian Courts possess inherent jurisdiction to stay proceedings which are an abuse of process..."

1. In that case Gaudron J emphasised the exceptional nature of the remedy and the necessity to consider the whole relevant legal context before granting a permanent stay:

"...a Court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if un-remedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

1. Decisions from various Australian jurisdictions make clear the variety of circumstances and legal contexts in which a permanent stay might be considered. For example Rogers v R (1994)181 CLR 251 involved a question of the admissibility of evidence; Walton v Gardiner and Ors (1993) 177 CLR 378 involved charges before a medical tribunal; R v Smith and Ors [1995] 1 VR 10, involved prosecution of numerous police on murder charges. The doctrine of abuse of process has resulted in diverse orders for stays (or for declining the grant of a stay) depending on the legal context.

1. In relation to a finding of unfitness for trial, there is no doubt that the doctrine of abuse of process may be applicable, but if a permanent stay order is to be made, it cannot be made unless the Court gives appropriate consideration to the existence of any alternative to the making of a permanent stay order, R v WRC [2003] NSWCCA 394. A stay order must be a remedy of last resort.

1. In DPP v Shirvanian (1998) 44 NSWLR 129 his Honour the President explained something of the history of the doctrine of abuse of process and said:

"Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in Courts generally."

1. Mason P. further said:

"In my view Jago v District Court (NSW) resolves in Australian law the question whether a Court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition."

1. In the present case, the principal basis for the application to stay proceedings is that the accused is very old, very ill, and that the stress involved in the proposed proceeding would be likely to gravely endanger him or even kill him.

1. Extreme medical frailty has been cited as a basis for a stay of criminal proceedings. In R v Hakim (1989) 41 A Crim R 372 the Court confirmed a decision by Lee J to stay a prosecution. Gleeson CJ said:

"The reason that Lee J decided as he did was based upon the medical condition of Mr Hakim which was outlined in his Honour's judgment. Mr Hakim had a long history of ischaemic heart disease. This has been complicated by a complete heart block. He had undergone a by-pass operation in 1981 and had suffered serious complications. He suffered, as the medical evidence showed, a range of physical, neurological and psychological conditions. His prognosis was poor. His memory had been affected by his condition and subsequent treatment. Lee J concluded that his condition had deteriorated from the time he had first been seen by Dr Nasser whose evidence was referred to. This consultation had taken place in January 1984. Although his Honour did not have up to date medical evidence on Mr Hakim's condition evidence was called before him to show that Mr Hakim at the time of the proceedings before the magistrate and since had been confined to a prison hospital.

From this catalogue of misfortune, Lee J concluded: "He has been in hospital, now in the gaol hospital for six months and it is put to me that in those circumstances his declining deteriorating medical condition is of such a nature and should be viewed in such a light that the conclusion be drawn that to allow this charge to remain would amount to an abuse of the process of the Court. As I have said it is somewhat unfortunate that the Court has not an up to date report on Hakim's condition but in the circumstances I am unwilling to regard the deplorable medical condition in which Hakim finds himself as other than a reason for upholding the decision of the magistrate in this case.

Lee J had before him a wealth of material concerning the medical condition of Mr Hakim at the time the matter was before the Magistrate. He could infer that Mr Hakim's condition had not improved, had probably deteriorated and this was to some extent confirmed by the evidence of his confinement to the prison hospital. In all of the circumstances, I am not convinced that an error of principle has occurred which requires the intervention of this Court. If, as Lee J found, it would offend common humanity to now require Mr Hakim to stand trial on the further charge of conspiracy, it was open to Lee J to stay the proceedings upon that charge. It will be a rare case that intervening illness or the physical or mental condition of the accused will bring a Court to such a conclusion. But Lee J was brought to it. And I would not disturb that conclusion in the facts of this case."

1. The test that the continuation of proceedings would be an offence against "common humanity" was used by the High Court in Subramaniam v R (2004) 211 ALR 1 where the High Court said:

"[31] A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it would be out of accord with common humanity to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed.

[32] It is true that the medical evidence given by Dr Menzies and accepted by the primary Judge established that the appellant had "an adjustment disorder with anxiety and depressive features" which developed to the point that after the first trial she was talking about suicide. It would no doubt have been better had the trial Judge discussed the principles relating to stays and might therefore now be able to be seen to have applied them to particular parts of the medical evidence which he was disposed to accept. But nonetheless it does appear that the primary Judge did have regard to the whole of the medical evidence in reaching the decision that he did.

[33] The possibility of the continuing deterioration of the appellant's mental health and any potential that the trial might have for its aggravation did not therefore, in the circumstances of this case, provide sufficient reason for the grant of a permanent stay. The primary Judge has not been shown to have failed to weigh and give effect to relevant factors of the kind to which Mason CJ, Deane and Dawson JJ referred to in Walton:

a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

[34] We are not persuaded therefore that the primary Judge erred in holding that the appellant's mental condition, or even the chances of its deterioration however caused, warranted the grant of the stay, and that the majority in the intermediate Court erred in relation to that holding. The holding of the primary Judge was essentially a factual one and included a discretionary component. His Honour's position was that it was in everyone's interests, including the appellant's that the trial proceed as quickly as possible.

[35] The ground of appeal relating to the stay should therefore be rejected. This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave. "

1. Although a stay was not granted in Subramaniam, the High Court plainly envisaged that there might be circumstances where the medical condition of an accused was such that the continuation of the proceedings against him would be an offence against common humanity and in respect to which a stay should be granted.

1. In the present matter I see the case of Subramaniam as providing the correct guidance for me in approaching this application. I am required to identify relevant principles applicable to stays and to apply them to the parts of the medical evidence which I accept. In doing so I am bound to consider (inter alia) fairness to the accused, the legitimate public interest in the disposition of serious criminal charges and the need to maintain confidence in the administration of justice.

MEDICAL EVIDENCE

1. The complexity of Father Murray's medical condition was set out in my judgment in the fitness hearing.

1. It is relevantly now substantially similar to his condition at that time (9 September 2010):

"Medical Conditions Affecting the Accused

It is common ground that the accused is 81 years old and suffers from a number of medical conditions, briefly as set out in Exhibit A8, summarising the accused's medical history since 1930, and as spelled out in Dr Kennedy's report, Exhibit B2, by Dr Roberts in Exhibit A2, by Doctor Wendy Goh, Dr McCusker, Dr Neilssen and Professor Kiat in his report of 12 August 2010 contained in Exhibit A2. The lists as attached to Dr Goh's report (Exhibit A2, Tab 7) are as follows:

Active Medical History

· Severe Ischaemic Cardiomyopathy - dyspnoeic on minimal exertion AF (Atrial fibrillation) - on Warfarin

· Unstable angina - previous large inferior and inferolateral myocardial infarct and distal LAD infarct.

· Biventricular Pacemaker - 6th to date.

· July 2001 - Cardiac Arrest during a stenting procedure to his circumflex artery.

· Obstructive Sleep Apnoea - on CPAP machine

· Right Deep Venous Thromboses

· Cerebro-Vascular Accident, confusion, cognitive impairment.

· Recurrent skin cancers - requires frequent surgical excisions, diathermy and cryotherapy treatments.

· Carotid Artery disease

· Renal Impairment

· Bowel Polyps has regular surveillance colonoscopies.

Inactive Medical History

· Subtotal right thyroidectomy in 1971.

· Cholecystectomy 1978.

· Prostatectomy 1989

· Right hemicolectomy for carcinoma ascending colon and repair of abdominal hernia 1992.

· Diabetes Mellitus 1993.

· Bilateral total hip replacement.

· 1st pacemaker 1987 due to bifascicular block.

· Angioplasty 1994

· Coronary artery Bypass Graft x 2 1994 (Adelaide)

· Myocardial Infarct 1999

· Total Thyroidectomy - left lobe 2008 and left vocal cord palsy

· Renal Calculi 2008

· Acute Renal failure 2007 and a need for one dialysis treatment following an angiogram in 2007.

· Arthroscopies and Meniscectomies to both knees.

· Degenerative lumbar spine.

· Large Incisional hernia."

1. In these current proceedings I have once again seen Dr Kennedy and Professor Kiat in the witness box. Both are eminent specialist cardiologists. They agree that the accused is a very ill man suffering severe heart problems.

1. Exhibit A2 is a folder of medical reports relating to Father Murray, including reports from these two cardiologists. The ejection fraction showing the amount of blood pumped through the heart is "low 30%" (Dr Kennedy, p3 26 July 2010) due to "severe coronary disease with evidence of myocardial infarction and coronary graft occlusion" (p.4). Dr Kennedy said in that report that "he remains in a high-risk group for sudden cardiac death." Furthermore, he said "heart failure is a very serious condition. Once diagnosed, even with modern therapy, 30-40% die within 1 year and 60-70% are dead within 5 years (McMurray, 2005)". (p4).

1. Professor Kiat, the treating cardiologist for the accused in his evidence this week (27 July 2011) confirmed his previous evidence generally to like effect to that of Dr Kennedy cited above and agreed that the "left ventricular ejection fraction is about 30%", both as at 2007 and now.

1. The accused is on his sixth heart pacemaker (Dr Kiat, 27/7/11, p5). Dr Kennedy expressed astonishment in his evidence that the accused has had six heart pacemakers successfully implanted (27/7/11, p44):

"Q. Is that extraordinary, six?

A. I've never struck it. I've never struck it."

1. Without being comprehensive, there are several areas of distinction between the evidence of Dr Kennedy and the evidence of Professor Kiat: general approach to cardiology; stress; beta-blockers are three headings I will utilise.

GENERAL APPROACH TO CARDIOLOGY

1. I discern in the approaches of these two eminent cardiologists a clear difference of views. Dr Kennedy is both a specialist cardiologist and a highly qualified pharmacologist - in the latter respect he holds a higher doctorate in medicine. As a generalisation it struck me that he is inclined to think that an emphasis on non-invasive treatment for heart patients is broadly better than invasive treatment involving surgery. He points to significant advances in cardiology over the last decades through drug treatments.

1. Again as a generalisation, Professor Kiat, who holds chairs in three teaching hospitals, seems cautiously confident of the benefits of some invasive approaches such as the insertion of stents and other surgery. He referred various times to a new tomography machine at Macquarie Hospital. This is a difference of approach which I merely note, and plainly cannot seek to judge.

STRESS LIKELY TO FLOW FROM CONTINUATION OF THE SPECIAL HEARING

1. Professor Kiat is emphatic that stress imposed on persons with cardiac vulnerability can be fatal. Neither cardiologist can point to a specific study of the stress-inducing effect of involvement in litigation by such persons. Obviously such a study would be ethically unsupportable.

1. However Professor Kiat said in his evidence both of 25 August 2010 and of 27 July 2011 that it was possible to draw inferences about strain on patients with heart problems. He referred to earthquake studies, studies following wars and a study in which he himself had been involved while a doctor at the Cedar-Sinai Hospital in the USA.

1. Dr Kennedy emphasised the beneficial effects of beta-blocker drugs in effectively reducing stress but was reluctant to give an expert opinion about the impact of stressors (27/7/11, pp 47-49):

"You're getting me to move into the areas of psychology. I pass on what is a sudden stress or an acute stress, that's the area of psychology." (P.49)

1. Professor Kiat was concerned about the risk of sudden death to the accused arising from the stress of proceedings (27.7.11 p.23):

"...That's always been my - I guess, my fundamental opinion or recommendation that from a physician's standpoint it is my duty to have anyone with a risk of an acute cardiac event to minimise the risk of exposure to heightened and allergic state, and therefore I don't know for what level of heightened and allergic is experienced by a certain individual like Father Murray under whatever circumstance of heightened and allergic state it will be different for different people and therefore coming back to the risk of sudden cardiac death, it - if one were to say, for example, again, this is based on evidence, I would like to say, again this data came from a very famous PET centre called UCLA Medical Centre by Dicarli Et Al, several years ago, that shows the exact situation of this resting ischaemia shown by PET, that Father Murray's pictures show. This group of people, in fact the population is very similar to the condition of Father Murray, that is the ejection fraction is about 25% to 30%, around 25% I think, and these patients have resting ischaemia on PET scan like what Dr Murray has.

Now in that group of population the annual mortality with medical treatment is 50%, five zero per cent, versus if they were in fact able to be treated with bypass surgery, it sort of dropped to a lower percentage. This is a huge amount of mortality. Now, when the mortality rate is so high my job is to have to say to them minimise, minimise, minimise heightened and allergic state that increases the potential of an acute event. Therefore in whatever way possible I would like to avoid them to be under any form of stress."

1. On the point of mortality rates, Dr Kennedy did not dissent (27/7/11, p.61):

"Q. One of the things that Professor Kiat talked about was some study which indicated that where you've got people roughly in the position of Father Murray, of his age and general condition, and if the ejection rate that you were talking about is 30 or below, that this category of people generally has a mortality rate of what, 50% in a year?

A. It's high, it's - the severe cardiac failure has a - is worse, you tell the students this is worse than having a cancer of the colon with a secondary. But fortunately we can do a lot more for this. And once you - people stabilise, the figures do well. It's a very serious condition yes. The mortality is very high.

Q. Is the mortality very high even with the best non-invasive medicine now or--

A. Even - the best - looking at the big studies, the beta blocker studies which are the most recent ones, there is still very high mortality, as you always point that out when you give a talk on it. There are varying figures, the take away message is even with maximum therapy it is still a serious condition, a very serious condition. Some people obviously keep going."

1. In re-examination Dr Kennedy confirmed that the group in which the accused is placed is very vulnerable indeed (27/7/11, p.62):

"Q. This 50% mortality figure that his Honour was just asking you about, though, how long in your opinion has Father Murray been in a position where he is in that group, subject to a 50% mortality rate?

A. Obviously he's still going. He's a person who has a severe illness and we now know people, while the big control studies show this ever - the increasing number of people, there are always those who survive under maximal therapy and he's under the maximal therapy and he's a person with a severe illness. Could he die at any time, yes, he could. He's the sort of person to make an analogy who I would see every few months or so and if the local doctor said he passed away, well, none of us would be surprised. Quite often I get a call from the local hospital, "One of your patients came in" and somebody says, "Oh he passed away." No one is really very surprised, but I would not at all be surprised if he was - seeing him in 12 months time. I am not able - I don't think anyone is able to give you an exact prediction, I can't do it.

Q. Given the angiogram results from 2007 that you've looked at, was he in that 50% mortality rate group back then?

A. He'd been in this group for a long time. Definitely, he was in that group then.

Q. So it would seem that the odds have been stacked against him, so to speak, at least since 2007 and yet he remains alive?

A. Yes."

BETA-BLOCKERS AND THEIR SIGNIFICANCE

1. The Crown has argued that medication in the form of "beta-blockers", currently being taken by the accused, provides a basis for inferring that a special hearing could proceed without excessive stress on the accused. Dr Kennedy said (27/7/11, p.41):

"...The reason why you would be giving a person who has got severe cardiac disease beta blockers is the patients with cardiac failure have surprisingly high levels of adrenalin like compounds circulating and it has now been shown without a shadow of a doubt that certain ones of the beta blockers are highly effective in increasing the survival of people who have cardiac failure, that is now without question. As to whether it applies to all the beta blockers, is a different question, but all of them will have an effect in blocking anxiety and some of them certainly have a very favourable effect in increasing survival, which I think is one reason why Mr Murray is still functioning."

1. Dr Kennedy did not agree that beta-blockers directly acted to reduce stress (pp 41-42) but said that adrenalin is increased by stress and beta-blockers, in effect, reduce the adverse effects of increased adrenalin on the vulnerable heart. He agreed, however, that even with the best non-invasive medicine - beta blockers - "... there is still very high mortality... " (27/7/11, p.61).

1. Professor Kiat said that beta-blockers are not directly used for reducing stress, but agreed that they are effective (27/7/11, p.17-18):

"Q. The beta blocker that your patient is prescribed is given to him not to reduce stress, but rather to deal with the varied medical problems that he has, is that correct?

A. It is given to him based on evidence that Carbedilol, Bisoprolol and long acting Metoprolol have been shown to improve survival in patients with cardiomyopathy.

Q. And how does it improve their survival, by reducing stress or by some other mechanism?

A. I would say the proposed mechanisms are varied. Proti(?) and protium are - one of the proposed mechanisms is reduce the inotropic and chronotropic properties of the heart. That means that the heart doesn't need to work as hard and therefore is reducing the oxygen demand of the heart."

1. As part of the exercise in which I am involved, let me turn now to consider the purposes of a special hearing, and how those purposes may relate to the present case.

PUBLIC DISAPPROBATION

1. An outcome other than "not guilty" following any special hearing is a result which can less effectively satisfy the purpose of public disapprobation of criminal behaviour than a "guilty" verdict following an ordinary trial. That is because the finding is highly qualified, and deliberately so, given the structure and purpose of the special hearing provisions. To determine "that on the limited evidence available the accused committed the offence charged" is not the same as, and is less certain, than a conventional finding of guilt. Although it is a finding, it is qualified and tentative. It is not a conviction: s 22A(3)(a).

PUBLIC PROTECTION

1. The special hearing provisions are particularly intended to provide for public protection in circumstances where a person qualifies for a special hearing, and the person is especially dangerous on a continuing basis. For example, there is a small category of mentally retarded offenders who commit serious sexual offences against children, and who can never realistically be dealt with in a normal trial because they do not and will never understand the processes of a Court. These cases may involve such a level of immaturity on the part of the offender that, although he may be in his twenties or thirties, he can still only relate to children of 5 or 7 years of age. In such cases, the combination of the offender's physical size and organic sexual maturity can lead to repeated instances of physical force being used against children. Where there is a special trial of such a person, and it is plain that he did the actions alleged and is likely to continue doing similar things in the future, the protection of the public will be a central consideration in the setting of the "limiting term" provided for under the special hearing provisions.

1. In the present case, the accused is not such a person. At almost 82 (he was born 26 April 1929), able to walk only with difficulty and in imminent danger of death, there is no likelihood of future offences. This centrally important purpose of a special hearing is not relevant.

INDIVIDUAL DETERRENCE

1. To the extent that this may be a purpose of a special hearing, the same considerations apply as those mentioned in regard to public protection - that is, it is not a significant issue here.

GENERAL DETERRENCE

1. General deterrence is a legitimate consideration in relation to most conventional trials and sentences, and it might in some cases be a consideration in relation to whether or not to conduct a special hearing. However it is hard to see that the holding of a special hearing in this case will deter anyone more than they may or may not have been deterred by prosecutions already undertaken and publicity already generated. For the last decade, a cohort of Catholic priests who have committed offences against schoolchildren and parishioners have been brought to book, castigated, convicted in many cases and shamed. There has been massive publicity about such cases. Only this week the Vatican and Ireland severed diplomatic relations over the issue, which has been a festering wound in the Christian world since the 1980's. The school where this accused is alleged to have committed some of the offences has had various of its former teachers charged over like offences, to great publicity. I find it hard to imagine that the prosecution of Hugh Edward Murray in a special hearing as proposed, would be of significant value in promoting the value of general deterrence.

THE PURPOSE OF ALLOWING AN OPPORTUNITY FOR ACQUITTAL

1. The statistics and the research upon which the provisions for special hearings were introduced in 1983 showed numerous individuals being detained at the Governor's pleasure in New South Wales for extraordinarily long and inappropriate periods. The research revealed numerous mentally retarded persons being detained more or less permanently in the facility for the criminally insane at Morisset, in circumstances where detention was not or was no longer justified. Individuals had been detained for decades for offences of a minor character, on the principle of public protection. At that time, under the common law and statute, the consequence of a finding of unfitness to plead was indeterminate detention at the Governor's pleasure. Such detention allowed only limited and unsatisfactory review of the necessity for continued detention.

1. The research upon which the special hearing provisions is based took place during the 1970's: (see Volumes 22 and 34, Proceedings of the Institute of Criminology, Sydney University). One of the main purposes of the 1983 amendments dealing with unfitness to be tried was to establish a regime of regular review by the new Mental Health Review Tribunal of the necessity for the continuing detention of "forensic patients", a category including those detained as unfit to be tried. That regular superintendence by the Mental Health Review Tribunal remains an important protection against indeterminate detention, comparable with the "gaol delivery" jurisdiction of the Supreme Court, a fundamental protection of liberty since the 12th or 13th century.

1. A related aim of the 1983 laws was to provide an opportunity for the possible acquittal of anyone who was unfit for trial. Pre 1983, a determination of "unfit to plead" (if that unfitness was likely to be permanent) meant not only indeterminate detention, but as well that there would never be a trial. While in reality most criminal charges are properly based - we know this because regularly 80 to 90 per cent of those charged plead guilty - the guilt of a small proportion can be in serious question. Much of our common law criminal jurisprudence has historically been directed at the protection of the rights of that statistically small but vitally important group. The 1983 amendments of the Mental Health Act and related statutes aimed to provide for proper juridical scrutiny of charges brought against those in what may be called the "special hearing cohort". Those provisions allow for the possibility, for example, that the mentally retarded youth who may appear at first impression to be the person who molested a young child in a park, may actually not be the right person. Thus while the special hearing provisions do not provide for a finding of guilt in the conventional sense, they do provide for acquittal in the conventional sense.

1. This latter possible purpose of a special hearing has no significant weight in this case. The accused has indicated that he knows the alleged victims, or has done so in the past, but the passage of time since the 1960's and 1970's, the uncertainty of dates of alleged offences and the loss of evidence and witnesses over time means that this case would necessarily be essentially a "one on one" contest, were the accused able to give evidence. This is not a case where there might be DNA evidence, or an alibi or a key witness who might be uncovered through the investigation and juridical scrutiny which a special hearing might involve. This possible purpose of a special hearing has no significant weight in this case.

THE SATISFACTION OF COMPLAINANTS

1. The possible satisfaction of complainants which may arise from the pursuit of charges against an alleged offender is a legitimate consideration in the criminal law generally. Although crimes are charged and prosecuted by the State, it is a relevant consideration that the victim of a crime should be able to see justice done, and his or her legitimate complaints vindicated by public Court process. Personal feelings of anger may not be allowed to govern criminal process, but they should not be ignored by prosecuting authorities and the Courts.

1. However, sometimes satisfaction of a victim by Court process may simply not be possible. Accused persons may disappear and cannot be found, no matter how diligently police search. A complainant may die. Key witnesses, upon whom a prosecution might depend, may die, disappear, or remember nothing. Here, there was delay of decades in the bringing forward of complaints and the laying of charges. The counts on the indictments derive from the 1960's and 1970's, a time before many of the members of any potential jury in a special hearing would have been born.

1. Delay, long delay, in child sexual assault cases is quite understandable. The courts recognise it as likely in many cases even of entirely true and valid complaints, for a variety of human reasons. Yet even blameless delay has consequences. Here, it means that the accused has become a very ill man in his eighties, afflicted by multiple major illnesses to the point where he is in all likelihood close to death. In this case, my view is that the possible satisfaction of complainants by the continuation of this Court process, although a factor to be considered, is greatly outweighed by the fact of the lamentable medical condition to which the accused has now fallen. If the charges had been laid during the twentieth century, rather than the twenty first, it would have been a very different situation.

CONCLUSION

1. Let me turn back to the decisions in Jago and Subramaniam. I have identified relevant principles applicable to stays, particularly whether there is a feature of this litigation which, if not remedied, would render the proceedings so seriously defective by reason of injustice as to demand the grant of a permanent stay; and whether there is, in the circumstances, no alternative available to the grant of a permanent stay which could meet the justice of the situation.

1. I bear in mind that it is the primary duty of Courts to exercise their jurisdiction except for the most compelling of reasons. There is a legitimate public interest in charging suspects and in the completion of criminal trials. Likewise there is a need to maintain public confidence that the proper ends of justice will not be frustrated for other than compelling reasons.

1. I need to apply these principles to the medical evidence which I accept as being of the greatest importance. I accept that the accused is a grievously ill man in imminent danger of death. I accept that even if he has been relatively stable since 2007, the stability is highly precarious. I accept that his risk of dying, even with beta-blockers and without Court proceedings, is about 50 per cent each year. I accept the inference which Professor Kiat draws that the stress of the continuation of the proceedings would put the accused in grave danger. I accept the evidence of Dr Kennedy, albeit tentatively advanced, that the stress of the proceedings would be at least just as great if the accused were to sit at home wondering about the Court case as if he were to be actually present here. (27/7/11, pp 48,49,61). That is a view which I would have reached anyway.

1. As I say, I have noted the undisputed evidence that the accused is in a category of persons of whom half will die each year in any event. To this I add what I conclude from the medical evidence to be the strong likelihood that the stress of continued proceedings extending over a number of weeks would be likely to precipitate a sudden cardiac event and death. I am not certain about this but the risk is so great that it should not, humanely, be taken.

1. I do not regard the alternative of a temporary stay as at all appropriate. Although Professor Kiat speaks of possible intervention by way of a defibrillator and possible surgery ("plumbing", as he called it) I note Dr Kennedy's fears in this respect that the accused is, in effect, too far gone with cardiac disease for any clinical intervention to be realistically possible or effective. Those are not his exact words but I take it to be the gist of what he was saying. I cannot determine which doctor is correct on this point about treatment, nor do I need to do so.

1. I cannot dictate what treating doctors may do. However, whether or not any further surgery is contemplated, it seems to me that the continuation of these proceedings a day longer, and certainly for the weeks or months required for the hearing, would be inhumane and unfair. I am satisfied that the test applied in Hakim and confirmed in Subramaniam has been satisfied and that, as a last resort, the indictment should be permanently stayed.

1. I so order.

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Decision last updated: 28 October 2013