R v Hughes - [2006] SADC 11

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v HUGHES
Reasons for Decision of His Honour Judge Barrett
15 February 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS
Stay of Proceedings - Claimed memory loss due to concussion shortly before alleged event said to make fair trial impossible.
Held. Suggested memory loss not sufficient to take the extreme step of staying proceedings.
Jago v District Court (NSW) (1989) 168 CLR 23; Ross v Tran & Ano (1996) 87 A Crim R; The Queen v Richards (1994) 64 SASR 42, referred to.

R v HUGHES
[2006] SADC 11

The accused applies for a permanent stay of proceedings. He is charged with wounding with intent to do grievous bodily harm. It is alleged that on the 26^th September 2002, he stabbed a man in the face and the neck. There is a long history of directions hearings in this court throughout 2003, 2004 and 2005. Various psychological and psychiatric reports have been prepared dealing with the accused’s mental state. The accused’s counsel Mr Pertl has drawn particular attention to the latest psychological report dated 25 May 2005 prepared by Mr Mark Reid. That report contains not only details of the neurological assessment carried out by Mr Reid, but also a convenient account of some of witness statements filed by the prosecution.
Essentially Mr Pertl’s argument in support of the application is that the accused is unable to recollect the events of the evening and so is unable adequately to defend himself at this trial. He will not be in a position to instruct his counsel. It is said he will not get a fair trial.
There is no doubt that courts have the power to order a permanent stay if there cannot be a fair trial. Mason CJ in Jago v District Court (NSW) (1989) 168 CLR 23 at p.34 said:
To justify a permanent stay of criminal proceedings, 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 v The Queen (1980) 147 CLR 75 at 111 per Wilson J.
His Honour held that the factors which might give rise to a permanent stay “cannot be precisely defined in way that will cover every case”[1].
[1] ibid p33
In this case the psychologist Mr Reid set out in his report that the accused asserted that at the time of the incident he was affected by alcohol and marijuana and was suffering the after effects of a blow to the head inflicted by his father using an iron bar shortly beforehand. Mr Reid is unable to ascertain the precise effects of the head injury which was caused by the blow. His report is helpfully summarised in two paragraphs. On page 8 of the report, he said:
It is not possible retrospectively to determine the actual severity of his concussion at that stage, especially as this was combined with the state of intoxication, but I can be reasonably sure that he did not suffer a major brain injury as evidenced by the lack of post-traumatic amnesia from the time he woke up the following morning.
It is not clear therefore, whether or not Mr Hughes was suffering from a temporary state of mental impairment at the time of this alleged offence over and above the acute effects of his intoxication and drug use.
The presence of a possible concussive head injury does not necessarily assume that he was unable to understand the nature and quality of his conduct at the time. It does mean that he may not remember this at a later stage however, but this of course could be further compounded by his intoxicated state.
Mr Reid also notes that in an interview with the police, the accused maintained some recollection of the offence giving rise to the charge. That appears in the record of interview conducted by Detective Senior Constable Peter Weber with the accused on the 27^th September 2002, the day after the incident. I have re-read that interview and the accused does indeed give a partial account of events following the infliction of the blow to the head.
My attention has been drawn to two cases. In the case of Ross v Tran and Ano (1996) 87 A Crim R 144 Nathan J of the Supreme Court of Victoria dismissed a motion brought by the prosecution against a decision by a magistrate granting a permanent stay of proceedings, apparently on three bases; delay, witness problems and brain damage occurring after the alleged incident. His Honour held that the brain damage was a factor “within the class of factors of being rare, exceptional and mightily prejudicial to the defendant as will sustain the proper exercise of discretion to grant a permanent stay”.
There appears to have been, in that case, no doubt about there being brain damage and amnesia suffered by the applicant as a result of a car accident occurring sometime after the date of the alleged offence.
Nathan J had not had drawn to his attention a decision in 1994 of Mullighan J in The Queen v Richards (1994) 64 SASR 42. In that case His Honour dismissed an application for a permanent stay of proceedings where the applicant claimed memory loss as the result of a suicide attempt after the alleged events. Although there was some uncertainty about the memory loss his Honour determined 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”[2]. His Honour concluded that the circumstances did not justify what he described as “the extreme step of a stay of the proceeding”[3].
[2] ibid p45
[3] ibid p 50
His Honour ordered that the trial proceed despite the claimed memory loss of the applicant. His Honour expressly made no finding on whether a permanent stay might be granted notwithstanding that a claimed memory loss did not amount to unfitness to plead. His Honour also expressly left open the possibility of a stay of proceedings where memory loss was caused, for example, by brain damage inflicted by the deliberate act of a co-accused[4].
[4] ibid p50
On the facts of the case before him, Mullighan J concluded that the jury would have to decide the extent of the loss of memory and that the trial judge would have to direct the jury on that topic.
It is clear that applications of this sort have to be determined on their own facts. If it is not possible for the accused to have a fair trial then a permanent stay will be granted. A lack of memory of events will not, per se, deny an accused a fair trial. In this case the extent of the memory loss and its cause are not clear. They will be matters for the jury following directions by the trial judge. I conclude that the disadvantage suffered by the accused will not be sufficient to deny him a fair trial. I decline to order a permanent stay. I dismiss the application. The trial is set for hearing on the 2^nd May this year.