R v Jacobi
[2012] SASCFC 115
•3 October 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v JACOBI
[2012] SASCFC 115
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Nicholson)
3 October 2012
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS - IN GENERAL
Appeal against a ruling of a District Court Judge refusing an application for a permanent stay of the proceedings on the ground that their continuation would constitute an abuse of the Court's processes.
Appellant charged with 13 counts of sexual offences against three brothers between 1976 and 1989 - whether a permanent stay of the proceedings ought to be granted by reason of the appellant's ill-health, and the lengthy delay in the allegations proceeding to trial.
Held: Appeal dismissed - a permanent stay will only be granted in the most rare or exceptional circumstances, where it would offend common humanity to require an accused to stand trial - the trial Judge did not err in his assessment of the medical evidence, suitable measures can be taken to ensure the effective participation and comfort of the appellant during the trial - appropriate adjournments and directions are able to sufficiently ameliorate any potential unfairness to the appellant - the proceedings would not involve an unacceptable degree of oppression to the appellant.
Criminal Law Consolidation Act 1935 (SA) s 348, s 352, s 56, s 49; Customs Act 1901 (Cth) s 233B; Evidence Act 1929 (SA) s 34CB, referred to.
Jago v District Court of NSW (1989) 168 CLR 23, applied.
R v Hakim (1989) 41 A Crim R 372, distinguished.
R v P, NJ (No 2) (2007) 99 SASR 1; Williams v Spautz (1992) 174 CLR 509; Walton v Gardiner (1993) 177 CLR 378; R v Austin (1995) 84 A Crim R 374; R v Sexton [2000] SASC 379; Longman v The Queen (1989) 168 CLR 79; R v Cassebohm (2011) 109 SASR 465; Barton v The Queen (1980) 147 CLR 75, considered.
R v JACOBI
[2012] SASCFC 115Court of Criminal Appeal: Gray, Sulan and Nicholson JJ
GRAY AND SULAN JJ: This is an appeal against a ruling of a District Court Judge, made antecedent to trial, refusing an application for a permanent stay of the proceedings, on the ground that their continuation would constitute an abuse of the Court’s processes.
On 24 August 2012 this Court heard the appeal. At that time, the Court ruled that the appeal be dismissed, and ordered that the matter proceed to trial as soon as possible. We now provide reasons for this decision.
The defendant is charged with three counts of indecent assault against a complainant SBM, eight counts of unlawful sexual intercourse against a complainant SJM, and two counts of unlawful sexual intercourse against a complainant VM.
The defendant, Frederick John Jacobi sought an order that the proceedings be permanently stayed, on the grounds that their continuation would constitute an abuse of the Court’s processes. The grounds were:
There is unfairness, prejudice, and oppression to the applicant by virtue of the continuation of the proceedings such that would justify granting a permanent stay of proceedings on the grounds that:
(a) The applicant’s physical health is such that he will not be able to properly participate in the trial;
(b) The court proceedings will have a deleterious effect on the applicant’s health and in those circumstances it is oppressive for the trial to proceed; and
(c) The delay between the alleged offending and the charges proceeding to trial has resulted in the unavailability of potential witnesses and the destruction of material documents such that there is an unfairness to the applicant.
The application was refused.
By virtue of section 352 of the Criminal Law Consolidation Act 1935 (SA), an appeal lies to the Full Court where a trial court makes a decision on an issue antecedent to trial. This includes a question, whether arising before or after a trial, as to whether proceedings on an Information should be stayed on the grounds that the proceedings are an abuse of the court.[1]
[1] Criminal Law Consolidation Act 1935 (SA), section 348.
The trial Judge granted the defendant permission to appeal his ruling as a matter antecedent to trial. The appeal is an appeal by way of re-hearing.[2]
[2] R v P, NJ (No 2) (2007) 99 SASR 1.
Background to alleged offending:
The prosecution alleges that the defendant continually sexually abused three brothers between 1976 and 1989.
The complainant SBM was allegedly abused from 1976 to 1979, when he was aged between 11 and 14 years. The defendant is charged with three counts of indecent assault in respect of this alleged offending.[3]
[3] Criminal Law Consolidation Act 1935 (SA), section 56.
The complainant SJM was allegedly abused between 1980 to 1987, when he was aged between 6 and 13 years. The defendant is charged with eight counts of unlawful sexual intercourse in respect of this alleged offending.[4]
[4] Criminal Law Consolidation Act 1935 (SA), section 49(1).
The complainant VM was allegedly abused from about 1986 to 1989 when he was aged between 10 and 13 years. The defendant is charged with two counts of unlawful sexual intercourse.[5]
[5] Criminal Law Consolidation Act 1935 (SA), section 49(1).
The appeal
The principle ground relied upon by the defendant in seeking a permanent stay is the state of the defendant’s health. It is submitted by his counsel that the trial Judge gave insufficient weight to the defendant’s deteriorating physical health and the deleterious impact of the court proceedings on his health and life expectancy. Second, it is submitted that the trial Judge gave insufficient weight to the defendant’s ability to concentrate and participate effectively in the trial.
The power to order a stay is a discretionary power. The onus is on the moving party to demonstrate the existence of facts which have the capacity to enliven the discretion to order a stay, and that in all of the circumstances, a stay is the only remedy available to prevent abuse. A permanent stay will only be granted in the most rare or exceptional circumstances.[6] In Jago, Mason CJ observed:[7]
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 would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.
…
To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the criminal 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”.
[6] Williams v Spautz (1992) 174 CLR 509, 529, Jago v District Court of NSW (1989) 168 CLR 23.
[7] Jago v District Court of NSW (1989) 168 CLR 23, 31, 34.
In determining what the interests of justice require, the Court will consider numerous factors, which include the legitimate public interest in the determination of serious charges, the conviction of the guilty, fairness to the accused, and maintenance of public confidence in the administration of justice.[8]
[8] Jago v District Court of NSW (1989) 168 CLR 23. See also Walton v Gardiner (1993) 177 CLR 378.
The defendant’s health
The defendant is 85 years of age. He requires assistance with walking, personal care, and transport due to his advanced age and illnesses. On 29 March 2012 he was assessed as eligible for low level residential care.
Dr Richard Van Dissel has been the defendant’s treating doctor since February 2000. In his most recent letter of 2 February 2012 Dr Van Dissel considered that the defendant was not fit to stand trial, in light of serious negative impacts on his health that could arise.
Dr Van Dissel had previously outlined the defendant’s medical problems as follows:
1. Cardiac failure due to atrial fibrillation. (He requires diuretic medication to remove fluid that accumulates in his lungs and lower extremities). This leads to frequent urination which exacerbates his incontinence problems. He also suffers from episodes of faecal incontinence.
2. Depression/Anxiety-Fred’s mental health has deteriorated over last year. He experiences quite severe shaking of his hands which is a manifestation of his anxiety. He suffers from suicidal ideation due to severe depression. Fred was unable to tolerate anti-depressant medications. Fred is afraid to drive alone. The shaking of his hands makes it very difficult to write or use eating utensils.
3. Osteoarthritis of both hips and knees has severely limited his mobility. He requires a walking stick for balance. He will require joint replacement surgery in the future.
Dr Van Dissel expressed concern at the defendant’s ability to attend lengthy court proceedings in light of the combination of his physical and mental health problems.
Dr Van Dissel gave evidence. He had last seen the defendant on 18 June 2012, whilst the defendant was resident in supportive care accommodation in Gawler.
The defendant’s medical conditions were summarised by the trial Judge:[9]
[9] R v Jacobi [2012] SADC 92, [35] – [45].
He [Dr Van Dissel] described the congestive cardiac failure as the applicant’s most significant medical condition, a chronic condition which requires regular medication and will gradually deteriorate. Dr Van Dissel described having observed a deterioration in that condition from the time of first diagnosis.
Dr Van Dissel said that the applicant also suffered ischaemic heart disease and suffered transient ischaemic attacks, or mini strokes, which is a separate condition from the cardiac atrial fibrillation, but which has a cumulative effect on that condition.
Dr Van Dissel said that the applicant had a 70 per cent blockage of the internal carotid artery, and that the atrial fibrillation was such as to produce clots which could, in turn, attach to the already present blockage to the artery and block arterial flow to the brain. He said that the applicant was at too great a risk of complication should surgery be carried out, and that accordingly the condition should be treated conservatively by managing risk factors which included managing hypertension, controlling the irregular heart beat with medication, and thinning the blood by the use of Aspirin.
Dr Van Dissel described a worsening of the applicant’s cardiac condition between the admission to hospital in August 2011, and the examination in June 2012, and said that since February 2012, when he admitted the applicant to the Kapunda Hospital, the cardiac condition was one third worse, which would manifest in increased shortness of breath, decreased exercise tolerance, general malaise and fatigue.
Dr Van Dissel described the applicant’s osteoarthritic condition in his knees as being an extremely painful condition. He said the applicant’s ability to concentrate had decreased over the last six months.
Dr Van Dissel expressed the opinion that the longest the applicant could concentrate during a trial would [sic] a period of one to two hours, and said that he would be concerned about the applicant sitting for more than that period in a whole day, due to the applicant’s malaise, fatigue from congestive heart failure, and pain from the osteoarthritis which would affect concentration. He also expressed concern that the stress of the trial process could cause a stroke, and said that if the applicant sat for more than one to two hours per day there was a “distinct possibility” that the applicant’s health would be affected.
Dr Van Dissel expressed the opinion that the applicant’s life expectancy was of the order of one to two years. He said that he suspected that the applicant’s life expectancy would be reduced should the applicant face trial. Dr Van Dissel also expressed the view that the applicant suffered significant medical conditions which could lead to a stroke, regardless of whether the applicant was in court, although the increased stress may increase the likelihood of such an event.
However, Dr Van Dissel described the applicant as a man of normal intellect, who would not have difficulty following the evidence or providing instructions.
Dr Van Dissel said that the applicant’s memory was quite good, although his concentration was affected by pain from the osteoarthritis and from depression. He reiterated that, generally, the applicant’s memory and recall of events is quite good, and did not consider that memory would be a negative factor in preventing the applicant’s sitting in court and participating in the trial, albeit for limited hours each day.
The applicant is living in supportive accommodation, not a nursing home, although in re-examination Dr Van Dissel expressed the view that the applicant was now at the stage where he should be admitted to a nursing home.
It is also noteworthy that whilst the applicant’s cardiac condition and its sequelae are said by Dr Van Dissel to constitute the most serious medical condition, the applicant has never been under the care of a cardiologist, although Dr Van Dissel said that he had spoken with a cardiologist for advice.
The defendant complains that the trial Judge gave insufficient weight to the following factors. First, the impact of court proceedings on his cardiac condition and life expectancy. Second, his rapid deterioration since his arrest. Third, the fact that he is now said to be a frail man, close to death, who is isolated, and of no danger to the community.
A permanent stay may be granted, in the appropriate case, where it would offend common humanity to require an accused to stand trial. Nevertheless, it will only be in a rare case that an intervening illness or physical or mental condition of the accused will justify this conclusion.[10]
[10] R v Hakim (1989) 41 A Crim R 372, 377.
Counsel for the defendant relies upon the decision of Hakim.[11] In Hakim, a magistrate had granted a stay against one of three accused, for reason of his ill-health. The accused had a history of ischaemic heart disease, complicated by a complete heart blockage. He had undergone a by-pass operation, and suffered serious complications. Evidence showed a range of physical, neurological and psychological conditions. Further, his prognosis was poor, and his memory was affected by his condition and subsequent treatment. Lee J concluded:[12]
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 process of the court. … 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.
…I do feel compelled in the light of the medical evidence to take the view that to allow these charges to stand in the light of the continuing deterioration of Hakim, who is now 58 years of age, 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.
[11] R v Hakim (1989) 41 A Crim R 372.
[12] R v Hakim (1989) 41 A Crim R 372, 376-7.
In Austin[13] an 87 year old man of poor health was charged with 10 counts of sexual offences against six complainants. The offences allegedly occurred between 1947 and 1981, though the applicant was not charged until 1994. The application for a permanent stay was sought on the basis of delay, as well as the applicant’s ill-health. The applicant suffered from a number of physical ailments including arthritis, hypertension and diabetes, while there was some evidence indicating difficulties with higher order cognitive functioning.
[13] R v Austin (1995) 84 A Crim R 374.
Owen J considered there to be a clear public interest in permitting the criminal justice system to operate so as to determine the guilt or innocence of a person accused of crimes of this magnitude. He observed:[14]
There is the undeniable public interest in ensuring that all members of society are treated fairly and that the instruments of society are not used to work injustice and oppression. The accused has an inviolable right to a fair trial. The complainants need to know that their allegations have been dealt with in a proper fashion. All of these concerns need to be addressed and balanced.
[14] R v Austin (1995) 84 A Crim R 374, 384-5.
Owen J dismissed the application. He considered that the extent to which the applicant had been prejudiced by the delay went to the evaluation of the evidence given at trial, rather than to the fairness of the trial process itself. Further, that the applicant’s poor health and impaired capacity to organise information and recall events, were relevant to how the trial should be run, and how the jury should be directed, rather than compelling a conclusion that any trial which follows would necessarily be unfair.
In Sexton[15] the accused was charged on indictment for a Commonwealth offence under section 233B of the Customs Act 1901 (Cth). He applied for his trial to be stayed or adjourned on the ground of his ill-health, alleging that he was unable both physically and mentally to properly defend himself. He sought to invoke the common humanity test espoused in Hakim.
[15] R v Sexton [2000] SASC 379.
Olsson J distinguished the condition of the accused in Sexton from the accused in Hakim. He considered the state of the accused’s medical problems in Hakim to be far more profound than the accused’s in Sexton, whose condition had not deteriorated significantly over the previous 12 months, and was relatively stable at the time of determination. He proposed to implement special arrangements to facilitate the trial process, and ease the pressure placed on the accused. This included the presence of a sheriff’s officer who was a trained nurse, the presence of oxygen revival equipment in court, as well as more frequent breaks.
We turn now to the circumstances of this case. It has already been observed that a permanent stay based on an abuse of process is a remedy of last resort. There must be no other means available to bring about a fair trial. The onus lies on the applicant to satisfy the Court that a stay is the appropriate remedy.
The defendant suffers from various medical problems, including a cardiac condition, osteoarthritis, general malaise and fatigue. Dr Van Dissel describes the defendant as a man of normal intellect, who would not have difficulty following the evidence or providing instructions. He is of the opinion that the defendant’s memory is quite good, though his concentration would be affected by pain from the osteoarthritis and from depression. He considers that the defendant could only sit for approximately 1 to 2 hours a day, before his concentration would be affected.
The trial Judge considered Dr Van Dissel’s evidence in detail:[16]
It seems to be that here, while the applicant is undoubtedly labouring under a number of medical problems, the significance of which should not be discounted, his condition is not such that it would be oppressive, or offend against common humanity, for him to face trial in respect of very serious charges against three complainants.
…
…accommodation can be made for the applicant’s medical difficulties in the running of the trial, including sitting reduced hours, and providing periodic breaks in proceedings as needed. The applicant was accompanied by a carer for the purposes of the application and that arrangement can continue.
[16] R v Jacobi [2012] SADC 92, [92], [94].
In our view, the medical conditions of the defendant are not so serious as to render a trial unfair, by reason of a lack of common humanity. We consider the circumstances in Hakim to be far more compelling than those in the defendant’s case. In Hakim, the defendant had already been in a gaol hospital for six months. His prognosis was poor, with not only physically deteriorating factors but neurological and psychological problems also.
The alleged offences are serious offences. There is a legitimate public interest in the determining of charges of this kind to maintain public confidence in the administration of justice. In our view the trial Judge was correct in his assessment of the medical evidence, and further, the measures that could be taken to ensure the effective participation of and comfort of the defendant, with respect to his ability to concentrate. It has not been demonstrated that the proceedings would involve an unjustifiable or unacceptable degree of oppression to the defendant. We consider that the discretion did not miscarry.
Delay
It is contended by the defendant that the lengthy delay in the allegations proceeding to trial means that relevant documents and witnesses are no longer available. It is submitted that this places an added burden on an elderly man to accurately recall events, without the aid of certain information and witnesses.
Counsel for the defendant points to three examples said to demonstrate this disadvantage.
The first is the defendant’s motor vehicle registration documents which have been destroyed. This is said to prevent the defendant from proving when he owned a black BMW motorcycle, as asserted by the complainant, SBM. SBM says the applicant possessed this vehicle at a time when sexual contact was taking place, and when the complainant was under the age of consent. The timing and date of the defendant’s association with SBM is said to be central to the defendant’s defence.
Second, the applicant’s mother is now deceased. She is said to have been present during an alleged sexual incident with one of the complainants, though not being in the actual room. This is said to be relevant again to the timing and dates of the defendant’s association with SBM.
Third, the applicant’s legal file in respect of a monetary transaction between himself and the complainant, SJM, said to have taken place in 1996, has been destroyed. There is, however, in existence some documentation relating to the payment of a sum of $10,000 by the defendant to SJM.
It is submitted by the defendant that no direction or alternative remedy could adequately ameliorate the unfairness to the applicant should the trial proceed. That is, the forensic disadvantage direction given pursuant to section 34CB of the Evidence Act 1929 (SA) could not address the humanitarian consideration of the impact of these proceedings on the applicant’s health, in seeking to recall events and frame a defence. In our view, delay is a separate issue. This argument erroneously mixes the issue of the defendant’s ill-health with alleged disadvantages stemming from delay.
In respect of these submissions, it is argued by the Director of Public Prosecutions that at best there is only presumptive prejudice arising, which could be ameliorated by directions given pursuant to section 34CB. It is submitted that in any case there is nothing to indicate that evidence stemming from any of the documents or from the defendant’s mother would have supported a defence.
With respect to the motor registration documents, the Director submits that even if the evidence showed that the defendant did not have a BMW at the relevant time, it would not necessarily follow that this would undermine the reliability of SBM’s recollection of the alleged offences. Further, it has been pointed out that information from the Registrar provides no details as to how long the Motor Registration documents were in existence. It might be the case that these records were destroyed some years ago, with the delay not having caused the records to become unavailable.
In relation to the death of the defendant’s mother, the Director notes that she died in 1985. Even a short delay in the reporting of the alleged incidents would not have resulted in a changed circumstance. Further, it is submitted that even if the defendant’s mother were alive, there is only mere speculation as to whether she would be able to recall any event where the complainant was present at the house, and whether any such evidence would support the defendant’s version of events.
With respect to the documents relating to the payment of money to SJM, the Director queries how any notes as to instructions given by the defendant would be admissible in the trial. Further it is submitted that there is sufficient corroborating evidence to omit any unfairness or prejudicial effect to the defendant. This includes the documents confirming the transaction, statements made by the defendant in his record of interview, and the nature and content of the letter to the defendant at the completion of the transaction.
The delay in this matter is significant. It is approximately 23 to 36 years between the events alleged and any proposed trial. In Jago the Court observed:[17]
Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”.
[Citations omitted.]
[17] Jago v District Court of NSW (1989) 168 CLR 23, [34].
Counsel for the Director submits that any alleged unfairness due to a forensic disadvantage may be remedied by an appropriate direction pursuant to section 34CB. Section 34CB provides:
(1) A rule of law or practice obliging a judge in a trial of a charge of an offence to give a warning of a kind known as a Longman warning is abolished.
Note-
See Longman v The Queen (1989) 168 CLR 79
(2) If, in a trial of a charge of an offence, the court is of the opinion that the period of time that has elapsed between the alleged offending and the trial has resulted in a significant forensic disadvantage to the defendant, the judge must-
(a) explain to the jury the nature of the forensic disadvantage; and
(b) direct that the jury must take the forensic disadvantage into account when scrutinising the evidence.
(3) An explanation or direction under subsection (2) may not take the form of a warning
and-
(a) must be specific to the circumstances of the particular case; and
(b) must not include the phrase “dangerous or unsafe to convict” or similar words or phrases.
In Longman the High Court was concerned with a Western Australian provision that removed an obligation to warn a jury that it was unsafe to convict a person on the uncorroborated evidence of the person upon whom the offence is alleged to have been committed:[18]
Apart from the special rule, the general law requires a warning to be given whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.
[18] Longman v The Queen (1989) 168 CLR 79, 86.
The Court was unanimous that the provision would dispense only with the requirement to warn of the general danger of acting on uncorroborated evidence of alleged victims of sexual offences as a class, and did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.
Brennan, Dawson and Toohey JJ observed:[19]
The question which arose, and which arose under the latter part of par. (b), was whether a warning was required that it was unsafe to convict on the uncorroborated evidence of the complainant, not by reason of her being an alleged victim of a sexual offence, but by reason of the whole of the circumstances of the case. There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant's mother. It would not have been surprising if these circumstances had elicited some comment from the trial judge, for it would have been proper to remind the jury of considerations relevant to the evaluation of the evidence. Of course, any comment must be fairly balanced. For example, any comment on the complainant's failure to complain should include (as indeed s. 36BD requires) that there may be "good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence". But there is one factor which may not have been apparent to the jury and which therefore required not merely a comment but a warning be given to them: see Reg. v. Spencer. That factor was the applicant's loss of those means of testing the complainant's allegations which would have been open to him had there been no delay in prosecution. Had the allegations been made soon after the alleged event, it would have been possible to explore in detail the alleged circumstances attendant upon its occurrence and perhaps to adduce evidence throwing doubt upon the complainant's story or confirming the applicant's denial. After more than twenty years that opportunity was gone and the applicant's recollection of them could not be adequately tested. The fairness of the trial had necessarily been impaired by the long delay (see Jago v. District Court (N.S.W.)) and it was imperative that a warning be given to the jury. The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.
[Emphasis added. Footnotes omitted]
[19] Longman v The Queen (1989) 168 CLR 79, 90-1.
In Cassebohm this Court addressed the scope and reach of section 34CB. Doyle CJ remarked:[20]
I consider that section 34CB(1) must be read as abolishing a Longman warning in the narrow sense of a warning based on the forensic disadvantage to an accused person attributable to the passage of time. Subsection (2) of s 34CB, which is clearly a qualification on subs (1), strongly supports that conclusion. So does the consideration that unless s 34CB(1) is read in that limited sense, it becomes very difficult to know what it is that is abolished. It does not abolish the duty of a judge to give a warning called for by other circumstances, nor the power of a judge to make an appropriate comment.
[20] R v Cassebohm (2011) 109 SASR 465, [24].
He observed:[21]
Section 34CB(2) creates a new affirmative obligation, to be discharged against the background I have outlined. The obligation is based on a forensic disadvantage to an accused person, attributable to the passage of time between the alleged offending and the trial. The obligation arises only if the judge is satisfied that the accused person has suffered “a significant forensic disadvantage”. This is a decision for the trial judge.
…
If the judge is satisfied that the defendant has suffered a significant forensic disadvantage attributable to the passage of time, the judge must then give the jury an appropriate direction.
[21] R v Cassebohm (2011) 109 SASR 465, [29], [31].
Whether a direction is called for, and the nature of its terms, will always depend on the circumstances of the particular case. An appropriate direction ought to be given where there are potential dangers of acting upon evidence which may not, without the direction, be appreciated by the jury. Once a court has formed an opinion as to the forensic disadvantage, it must explain the nature of that disadvantage, and direct the jury to take that disadvantage into account. Importantly, this is not to take the form of a warning, but must be specific to the circumstances of the particular case. It must not include the phrase ‘dangerous or unsafe to convict.’
The power to grant a stay of proceedings is a power which has a dual purpose: to prevent an abuse of process, or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice.[22] A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party.[23]
[22] Barton v The Queen (1980) 147 CLR 75.
[23] Jago v District Court of NSW (1989) 168 CLR 23, 47.
Complications are often encountered during the course of a trial. These may arise from, for example, the death or unavailability of witnesses, or the destruction of key documents. Nevertheless, these can often be remedied by adapting the procedures of the trial, by rulings on evidence, or by appropriate directions to the jury designed to minimise any prejudice which might otherwise result. It is not uncommon for these types of obstacles to arise.
The power to order a stay is extraordinary. This is so because a granting of a stay amounts to a refusal to exercise jurisdiction. A court which grants a stay without sufficient reason abuses itself by declining to exercise its constitutional function of determining disputes.
A determination must be made as to what the interests of justice require. Whether or not to grant a stay is ultimately a balancing exercise for the Court. On the one hand there is the public interest in the administration of criminal justice to guarantee the peace and order of the community, the determination of serious charges, and the maintenance of public confidence in the administration of justice. On the other hand, consideration must be given to any injustice or oppression that a continuation of the proceedings might bring, which could erode public confidence in the judicial system.
In Jago Brennan J considered that by the flexible use of power to control procedure, and via directions, a judge could virtually eliminate unfairness. He observed:[24]
The judge’s responsibilities are heavy but they are not discharged by abdication of the court’s duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness.
[24] Jago v District Court of NSW (1989) 168 CLR 23, 49.
We accept that there has been significant delay. The allegations were first reported to police in February 2010, and the matter listed for a trial to commence in the District Court on 9 July 2012. There has therefore been a delay of just over 36 years between the first alleged offence and this trial date. This delay is not attributable to the defendant. Nevertheless, the offences are serious offences. The matters relied upon by the defendant as indicative of unfairness and oppression are matters which are not uncommon to cases in which an accused faces sexual allegations of this nature said to have occurred some years ago. Parliament in removing the statutory immunity must have contemplated that historical allegations of this nature would be pursued.
The trial Judge considered the authorities on delay, and the appropriateness of when to exercise a discretion to order a permanent stay. He observed:[25]
It is necessary to consider the mechanisms available to redress the complaints identified by the applicant, and to consider whether appropriate directions, the exclusion of evidence, or other procedural orders, would remedy the complaint of unfairness. If so, the court’s ability to administer justice impartially and unfairly would not be compromised and a stay should not be ordered.
Bearing in mind the nature of the allegations, such evidence as is available, and the directions I am able to give as to the significant forensic disadvantage suffered by the accused, I do not consider that the evidence is insusceptible of rational or safe forensic evaluation. The prejudice to the applicant, which I accept does exist, is not outweighed by the public interest in having the charges tried.
Whilst the applicant is of advanced years, and suffers a number of the medical conditions which accompany such advanced years, his various conditions appear to be reasonably well controlled. There is no suggestion of any loss of acuity of mind. Neither the delay, nor the loss of potential evidence, nor the applicant’s medical condition, individually, or in combination, are such as to warrant the granting of a stay.
[25] R v Jacobi [2012] SADC 92, [97] – [99].
We agree with the observations of the trial Judge. In our view, this is not a case where procedural variations, such as increased adjournments, and appropriate directions, could not ameliorate any potential unfairness to the defendant.
One final matter has arisen. The Court dismissed the appeal on the day of the hearing and directed that the trial proceed as a matter of urgency. The Court has since been informed that the trial is listed to commence on 4 March 2013, and that the District Court could not list the matter any earlier than February 2013. The further delay is unacceptable. This case should be heard without delay. The defendant’s health may well deteriorate further, with the possibility that there will be a further stay application. Even if that is not the case, when this Court directs an early trial, a delay of six months to list the trial should not occur.
For these reasons, the appeal was dismissed.
NICHOLSON J.
Frederick John Jacobi has been charged on an Information[26] dated 9 July 2012 and filed in the District Court of South Australia with nine counts of unlawful sexual intercourse[27] and three counts of indecent assault.[28] On 16 July 2012 a Judge of the District Court refused an application for a permanent stay of the proceedings.[29] On 24 August 2012 Mr Jacobi’s appeal to this Court from the dismissal of his application in the District Court was itself dismissed at the conclusion of the hearing. The Court reserved its reasons. I now state my reasons for joining in the Court’s dismissal of the appeal.
[26] Appeal Book (AB) at 7-14.
[27] Criminal Law Consolidation Act 1935, ss49(1), ss49(3).
[28] Criminal Law Consolidation Act 1935, s56.
[29] R v Jacobi [2012] SADC 92.
Background
The 13 alleged offences are said to have occurred between 11 April 1976 and 31 December 1987 and to have involved conduct perpetrated against three brothers: SBM (now known as ZI) who, as at the particularised times, is said to have been aged between 11 and 14 years old; SJWM who, as at the particularised times, is said to have been 6 years old and older but under 17 years old; and VJPM who, as at the particularised times, is said to have been 11 years old. The allegations were first reported to police in February 2010 and the matter listed for a trial to commence in the District Court on Monday 9 July 2012.[30] As such, there has been a delay of a little more than 36 years and a little more than 25 years between the first and last alleged offence, respectively, and this trial date. It is common ground that this delay is not attributable to the appellant.
[30] An earlier trial date, 6 February 2012, presumably based on an earlier form of the Information, was vacated as a result of the applicant being admitted to hospital shortly prior thereto.
The trial did not proceed because the appellant filed an application, dated 4 July 2012, seeking a permanent stay of the proceedings on the ground that they constituted an abuse of process at common law.[31] The following grounds for the application were relied upon.
There is unfairness, prejudice and oppression to the applicant by virtue of the continuation of the proceedings such that would justify granting a permanent stay of proceedings on the grounds that:
(a)the applicant’s physical health is such that he will not be able to properly participate in the trial;
(b)the court proceedings will have a deleterious effect on the applicant’s health and in those circumstances it is oppressive for the trial to proceed;
(c)the delay between the alleged offending and the charges proceeding to trial has resulted in the unavailability of potential witnesses and the destruction of material documents such that there is an unfairness to the applicant.
[31] AB at 15-17.
In support of the application, the appellant relied on his own affidavit, sworn 4 July 2012, in which he deposed to his then personal and medical circumstances and to the results of enquiries made from which the court was asked to find that certain documentation, said to be of potential assistance to any defence case, is no longer available. Exhibited to the affidavit was a quantity of primary medical records, correspondence from the appellant’s treating general practitioner, Dr Van Dissel, and correspondence concerning the documentary records said no longer to be available.[32] In addition to this and other documentary material put before the District Court, Dr Van Dissel gave evidence at the hearing of the application. On 16 July 2012 the primary Judge declined to order a permanent stay of proceedings and published reasons for this ruling.[33]
[32] The appellant’s affidavit and the exhibits are to be found at AB 18-61.
[33] [2012] SADC 92.
The learned Judge, after stating some preliminaries, discussed with reference to relevant authorities the power available to the District Court to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process and the basis upon which such a stay might be granted.[34] His Honour observed that the court is to undertake a two stage process; first, to determine whether any unfairness, injustice, prejudice or oppression to an applicant has been established sufficient to enliven the power to stay the proceedings and second, to engage in a balancing exercise between the requirements of fairness to such an applicant (informed by the matters identified in the first stage) and the legitimate public interest in continuing with the proceedings. His Honour referred to the following, authoritative and often cited, statement in Walton v Gardiner.[35]
As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by 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. (Citation omitted.)
[34] At [6]-[23].
[35] (1993) 177 CLR 378 at 395-396 (Mason CJ, Deane and Dawson JJ).
His Honour also referred to the well accepted propositions: that the power to order a permanent stay is discretionary, to be exercised sparingly and only in exceptional or extreme cases; that the onus of satisfying a court of an abuse of process lies on the party alleging it; and that this onus is a heavy one to discharge.[36]
[36] See generally Williams v Spautz (1992) 174 CLR 509 and Jago v District Court of New South Wales & Ors (1989) 168 CLR 23.
As the Judge also noted, the categories of cases in which the inherent power to stay proceedings might be enlivened cannot be precisely delineated[37] and the exercise of the power to stay does not require a finding that proceedings are being pursued for an improper purpose or for frivolous, vexatious or oppressive purposes.[38] Nevertheless, and again as his Honour observed,[39] a permanent stay based on an abuse of process is a remedy of last resort and it must be demonstrated that it is the only remedy available in order to prevent the abuse that has been identified.[40]
[37] Jago at 74 (Gaudron J).
[38] Williams, above and Walton, above at 392-393 (Mason CJ, Deane and Dawson JJ).
[39] [2012] SADC 92 at [91].
[40] Williams, above at 529 (Mason CJ, Dawson, Toohey and McHugh JJ).
His Honour has correctly stated the legal principles relevant to an application of this nature and the appellant has not suggested to the contrary.[41]
[41] In the written outline of argument before this Court at [26] the appellant accepted that his Honour applied the correct principles in approaching the balancing exercise necessary to the decision of whether or not to grant a permanent stay.
At the hearing of the application in the court below, the appellant relied upon the three grounds, identified above, and ultimately to be assessed in combination, in support of his submission that the unfairness, prejudice and oppression that will be suffered by him in the event that the proceedings were to continue would justify the granting of a permanent stay. His Honour dealt with each of these three grounds or bases at some length in his judgment.
The appeal
The appeal to this Court is by way of re-hearing and in order to succeed the appellant must point to error on the part of the Judge at first instance.[42] The decision whether or not to grant a stay involves the exercise of a discretion. An error of the type identified in House v The King[43] must be demonstrated before such an exercise of discretion will be interfered with on appeal.[44]
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the Judges composing the appellate court consider that, if they had been in the position of the primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he misstates the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed, on the ground that a substantial wrong has in fact occurred.[45]
[42] R v P, NJ (No 2) (2007) 99 SASR 1; R v Ford (2009) 201 A Crim R 451.
[43] (1936) 55 CLR 499 at 504-505.
[44] R v P,NJ (No 2) at [29] and [117].
[45] House v The King at 504-505 (Dixon, Evatt and McTiernan JJ).
In the notice of appeal the only ground of appeal identified was that “the learned trial Judge erred in declining to grant a permanent stay of proceedings”. However, in the appellant’s written outline of argument, more specific grounds, reflecting those in the initial application, were identified.
The appellant complains that the Judge gave insufficient weight to the appellant’s deteriorating physical health and the deleterious impact of the court proceedings on his health and life expectancy.
The appellant complains that the Judge gave insufficient weight to the appellant’s ability to concentrate and effectively participate in the trial, even with the assistance of special arrangements, such as reduced sitting hours.
The appellant complains, in effect, that the Judge did not give sufficient weight to the difficulties that he would face at trial, given the extent of the delay and the consequent loss of documentary and oral evidence potentially relevant to the defence case. In this respect the appellant complains not just that the delay has resulted in a loss of such evidence but also that it will place “an added burden on an ill and elderly man to accurately recall events and frame his defence without the aid of destroyed information and witnesses”.
During oral submissions, counsel for the appellant also identified what she submitted were three errors in the Judge’s reasoning.
In his Honour’s concluding paragraph, the Judge stated “whilst the applicant is of advanced years, and suffers a number of the medical conditions which accompany such advanced years, his various conditions appear to be reasonably well controlled.”[46] Counsel submitted that this was an incorrect characterisation of the appellant’s medical state when proper regard is had to Dr Van Dissel’s evidence.[47]
[46] [2012] SADC 92 at [99].
[47] Appeal transcript at 10-12.
Counsel also submitted that the use by the Judge of the term “noteworthy” when referring to the fact that the appellant had never been under the care of a cardiologist, for that which was said by Dr Van Dissel to constitute his most serious medical condition, indicated error. Counsel submitted,[48] in effect, that the use of the word “noteworthy”[49] showed that his Honour wrongly inferred that the appellant’s cardiac condition was in some way less serious than the court should otherwise have found.
[48] Appeal transcript at 13-15.
[49] The full context is set out in the last paragraph of the lengthy extract quoted from his Honour’s reasons below.
Counsel also submitted that the Judge misapprehended the effect of relevant legislative amendments which operated to abolish previously existing time limitations with respect to the prosecution of sexual offences. His Honour observed[50] that the charges in this matter “could have been laid… from the 17th June 2003…”. When that statement is read in the context of his Honour’s discussion of the effect of the relevant legislative provisions as a whole, it would appear that his Honour was of the view that all of the charges were statute barred until 17 June 2003, such that much of the delay in this matter, at least that until 17 June 2003, would have occurred in any event.[51] During the argument on appeal, counsel for the Director of Public Prosecutions conceded, and in my view properly, that this was incorrect. It is common ground, that all of the alleged offences charged as counts six to 13 inclusive, with reference to alleged conduct after 1 December 1983 and said to concern SJWM and VJPM, could have been charged and proceeded with as at and at any time after 1 December 1985.
Was insufficient weight given to the appellant’s deteriorating physical health and the deleterious impact of the court proceedings on his health and life expectancy?
[50] [2012] SADC 92 at [61].
[51] His Honour’s discussion of this topic is found at [2012] SADC 92 at [58]-[63].
In my consideration of this, the first and principle ground relied upon by the appellant, I also deal with the matters raised in (iv) and (v) above.
I adopt, as sufficient for present purposes, the following summary of the appellant’s state of health, which I have extracted from the Judge’s reasons.[52]
[52] At [28] to [29], [32] to [45].
The applicant was born on 3 March 1927 and is now 85 years of age. He resides in supportive care accommodation and has done so since 1 July 2011. He requires assistance with walking, personal care, and transport due to his advanced age and illnesses, such care being provided by a care organisation.
In his affidavit, the applicant described difficulty concentrating for lengthy periods, and difficulty reading newspapers or magazines, having to re-read words before he understands what is written. He described having difficulty concentrating while watching television, and said he falls asleep while watching television. He deposed to the fact that he spends a considerable part of each day sleeping, and says that if he is required to attend an appointment with the assistance of a carer, such as to visit his doctor, he is generally too tired to engage in any activity for the balance of the day and the following day. He asserts that he would struggle to maintain concentration, and to combat fatigue, during a trial.
…
A report of 25 January 2012 set out the applicant’s medical problems as follows:
1. Cardiac failure due to atrial fibrillation (he requires diuretic medication to remove fluid that accumulates in his lungs and lower extremities). This leads to frequent urination which exacerbates his incontinence problems. He also suffers episodes of faecal incontinence.
2. Depression/and anxiety – Fred’s mental health has deteriorated over the last year. He experiences quite severe shaking of his hands which is a manifestation of his anxiety. He suffers from suicidal ideation due to severe depression. Fred was unable to tolerate an anti-depressant medication. Fred is afraid to drive alone. The shaking of his hands makes it very difficult to write or use eating utensils.
3. Osteoarthritis of both hips and knees has severely limited his mobility. He requires a walking stick for balance. He will require joint replacement surgery in the future.
The charges against the applicant were first listed for trial to commence on 6 February 2012. By letter of 2 February 2012 Dr Van Dissel reported that on 1 February 2012 he had admitted the applicant to Kapunda Hospital for investigation of increasing chest pain and shortness of breath. The applicant’s ECG showed non-specific changes in the lateral chest leads consistent with the ischaemic heart disease. Complaints of further stress and pain during the early hours of 2 February 2012 led to a diagnosis of unstable angina and further cardiac medication was prescribed. Dr Van Dissel said that he would seek a cardiologist’s opinion regarding further management. He concluded that the applicant was not fit to stand trial commencing 2 February 2012, and expressed the opinion that there could be a serious negative impact on his health as a result of doing so.
Dr Van Dissel was called to give evidence on the application, and said that he had last seen the applicant on 18 June 2012 at his medical practice, presumably in Kapunda, where the applicant had been taken by a worker from the Gawler supportive accommodation hostel, where the applicant was currently living. He said that he had previously admitted the applicant to the Kapunda Hospital on 24 August 2011 when the applicant was suffering significant shortness of breath, and complaining of ankle swelling and increased weight. On examination he found the applicant’s heart beat to be irregular, and described the applicant as being in congestive cardiac failure. Dr Van Dissel prescribed Digoxin to slow the heart rate, and Frusemide to facilitate the removal of fluid from the circulation.
He described the congestive cardiac failure as the applicant’s most significant medical condition, a chronic condition which requires regular medication and will gradually deteriorate. Dr Van Dissel described having observed a deterioration in that condition from the time of first diagnosis.
Dr Van Dissel said that the applicant also suffered ischaemic heart disease and suffered transient ischaemic attacks, or mini strokes, which is a separate condition from the cardiac atrial fibrillation, but which has a cumulative effect on that condition.
Dr Van Dissel said that the applicant had a 70 per cent blockage of the internal carotid artery, and that the atrial fibrillation was such as to produce clots which could, in turn, attach to the already present blockage to the artery and block arterial flow to the brain. He said that the applicant was at too great a risk of complication should surgery be carried out, and that accordingly the condition should be treated conservatively by managing risk factors which included managing hypertension, controlling the irregular heart beat with medication, and thinning the blood by use of Aspirin.
Dr Van Dissel described a worsening of the applicant’s cardiac condition between the admission to hospital in August 2011, and the examination in June 2012, and said that since February 2012, when he admitted the applicant to the Kapunda Hospital, the cardiac condition was one third worse, which would manifest in increased shortness of breath, decreased exercise tolerance, general malaise and fatigue.
Dr Van Dissel described the applicant’s osteoarthritic condition in his knees as being an extremely painful condition. He said the applicant’s ability to concentrate had decreased over the last six months.
Dr Van Dissel expressed the opinion that the longest the applicant could concentrate during a trial would [be] a period of one to two hours, and said that he would be concerned about the applicant sitting for more than that period in a whole day, due to the applicant’s malaise, fatigue from congestive heart failure, and pain from the osteoarthritis which would affect concentration. He also expressed concern that the stress of the trial process could cause a stroke, and said that if the applicant sat for more than one to two hours per day there was a “distinct possibility” that the applicant’s health would be affected.
Dr Van Dissel expressed the opinion that the applicant’s life expectancy was of the order of one to two years. He said that he suspected that the applicant’s life expectancy would be reduced should the applicant face trial. Dr Van Dissel also expressed the view that the applicant suffered significant medical conditions which could lead to a stroke, regardless of whether the applicant was in court, although the increased stress may increase the likelihood of such an event.
However, Dr Van Dissel described the applicant as a man of normal intellect, who would not have difficulty following the evidence or providing instructions.
Dr Van Dissel said that the applicant’s memory was quite good, although his concentration was affected by pain from the osteoarthritis and from depression. He reiterated that, generally, the applicant’s memory and recall of events is quite good, and did not consider that memory would be a negative factor in preventing the applicant’s sitting in court and participating in the trial, albeit for limited hours each day.
The applicant is living in supportive accommodation, not a nursing home, although in re-examination Dr Van Dissel expressed the view that the applicant was now at the stage where he should be admitted to a nursing home.
It is also noteworthy that whilst the applicant’s cardiac condition and its sequelae are said by Dr Van Dissel to constitute the most serious medical condition, the applicant has never been under the care of a cardiologist, although Dr Van Dissel said that he had spoken with a cardiologist for advice.
In my view, and after considering the medical evidence and that of the appellant himself that was before his Honour, the foregoing is a fair and reasonable summary of the appellant’s then medical state and one which demonstrates that the Judge attended to and closely appreciated the force of that evidence.
Counsel submitted that the deterioration in the appellant’s health over the very long delay in this matter was such as to justify a permanent stay of proceedings. Counsel submitted that this was one of those exceptional cases where the state of the appellant’s health, on its own, justified a stay.[53] Counsel relied on R v Hakim & Anor[54] and that which, during argument, counsel described as the Hakim principle, to the effect that it will be a basis for a permanent stay where the circumstances are such that to allow charges to proceed would be out of accord with common humanity. Counsel submitted, in effect, that the medical condition of the appellant at the time of the hearing in the District Court was such as to invoke this principle. Nevertheless, counsel maintained that the main argument on the appeal was that the Judge failed to give sufficient weight to the deteriorating nature of the appellant’s medical condition.[55]
[53] Paragraphs [23] and [24] of the appellant’s outline of argument.
[54] (1989) 41 A Crim R 372.
[55] Appeal transcript at 34.12-18 and see also at 12.34-38.
In Hakim there was a delay of two and a half years before proceedings were commenced charging the respondent with conspiracy. During this time the respondent’s health deteriorated. The committing Magistrate made an order that the further hearing of the Information against the respondent be permanently stayed. There was no appeal from this order by the Director of Public Prosecutions, rather, the Director applied in the Supreme Court of New South Wales for a declaration that it was not an abuse to proceed against the respondent and for an order that the Magistrate continue with the committal. Lee J dismissed the application. The Director applied to the New South Wales Court of Appeal for leave to appeal from this order of Lee J.
The application for leave to appeal was refused. Kirby P (with whose reasons on this aspect of the matter Gleeson CJ agreed) outlined the findings of fact concerning the medical condition of the respondent as relied upon by Lee J.[56]
Mr Hakim had a long history of ischaemic heart disease. This has been complicated by a complete heart block. He had undergone a bypass 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. … [E]vidence was called before him to show that Mr Hakim at the time of the proceedings before the Magistrate had since 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. … 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. … Certainly the line is a very fine one… but I do feel compelled in the light of the medical evidence to take the view that to allow these charges to stand in the light of the continuing deterioration of Hakim, who is now 58 years of age, would be out of accord with common humanity when the fact is 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.
Kirby P observed that Lee J had before him “a wealth of material concerning the medical condition of Mr Hakim” and the learned President was not convinced that Lee J had committed an error of principle requiring intervention by the Court of Appeal.
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 will not disturb that conclusion in the facts of this case.[57]
[56] (1989) 41 A Crim R 372 at 376.
[57] Hakim at 377.
The Judge in the present matter noted that counsel for the appellant had relied principally on the decision in Hakim and specifically dealt with that decision together with two other cases[58] in which Hakim had been distinguished.[59] Decisions in other courts and the reasoning process of other courts will only be of limited, if any, assistance in this area given that the legal principles are well established and, as his Honour observed,[60] all such cases “of necessity, must turn on their own facts”. In any event, I’m not satisfied that the medical condition of the appellant is “on all fours”[61] with that of Mr Hakim. In an important sense, it is not possible to make such a finding one way or the other. There is no doubt that the appellant suffers from a serious cardiac condition together with other related and unrelated serious medical conditions, as did Mr Hakim. Given their differing evidentiary bases and the fact that all one has from the reported decision in Hakim is a judgment or conclusion formed on the basis of the evidence that was before that court, a sensible comparison is simply not possible.
[58] R v Austin (1995) 84 A Crim R 374 and R v Sexton [2000] SASC 379.
[59] [2012] SADC 92 at [46]-[56].
[60] At [49].
[61] Counsel’s phrase, Appeal Transcript at 31.
Furthermore, the question before this Court is not whether another Judge, be it a Judge of this Court or of the court in Hakim, would have decided differently as to whether or not proceeding with the charges against the appellant “would be out of accord with common humanity”. The question is whether the Judge in this matter engaged in an error of reasoning in failing to make such a finding. On my review of the Judge’s reasons and of the evidence that was before his Honour as to the medical state of the appellant I am not persuaded that his Honour made any error of reasoning in this respect. His Honour was pressed with the case of Hakim and pressed with the argument that it was against common humanity to proceed and his Honour specifically adverted to Hakim and other authorities in his reasons. The Judge evidently did not agree that the appellant’s medical state was to be regarded as seriously as counsel for the appellant had submitted nor that it was so serious as to invoke the so called Hakim principle.[62]
It seems to me that here, while the applicant is undoubtedly labouring under a number of medical problems, the significance of which should not be discounted, his condition is not such that it would be oppressive, or offend against common humanity, for him to face trial in respect of very serious charges against three complainants.
[62] See, for example, his Honour’s judgment at [42]-[45], [92]-[94] and [99].
On my consideration of the evidence that was before his Honour I am satisfied that it was open to his Honour to reach this conclusion. I am not satisfied that the Judge made an error in failing to find that it would offend against common humanity for the matter to proceed to trial. His Honour made it clear that appropriate administrative mechanisms[63] would have to be put in place in an effort to accommodate the appellant’s medical difficulties during the conduct of the trial. His Honour’s failure to find any affront to common humanity must be viewed in this context.
[63] Such as reduced sitting hours, periodic breaks as needed and the availability of a carer to accompany the appellant throughout the proceedings.
To this point I have dealt with the argument from Hakim on the basis, which I have assumed but without finally deciding, that a finding that it would be against common humanity to continue with criminal proceedings, is available as a stand alone basis for a stay.[64] However, the main thrust of the appellant’s argument is that the trial Judge failed to give sufficient weight to the deteriorating nature of the appellant’s medical condition and, as a consequence, failed to exercise the required balancing process appropriately. In this context I turn to consider the more specific criticisms of the Judge’s reasons and approach as developed by counsel for the appellant during submissions.
[64] That is, in the sense that such a finding would obviate the need for any balancing process to take place at all or, perhaps, is to be seen as of such significance that it would overwhelm the balancing process.
Counsel maintained that the most significant aspect of the appellant’s medical condition, as it was presented to the Judge, was that it was deteriorating and that this was particularly so with respect to his cardiac condition. Counsel relied on the evidence of Dr Van Dissel and, in particular, his evidence to the effect that between February 2012 and July 2012 - when he came to give his evidence – the cardiac condition had deteriorated by a third.
It cannot be said that the Judge overlooked this consideration. His Honour expressly adverted to it in his reasons[65] and further observed that this ongoing deterioration in the appellant’s cardiac condition had been evident from as early as August 2011 and that it manifested itself in “increased shortness of breath, decreased exercise tolerance, general malaise and fatigue.” It is true, that his Honour described as “noteworthy” that the appellant had never been under the care of a cardiologist. I accept that an available inference from this observation is that his Honour was of the view that the appellant’s condition may not have been as serious as it would have been had he needed to be under the care of a cardiologist. Counsel submitted that it was appropriate and perhaps common for a person with a serious cardiac condition, in a country area like Kapunda, to be under the care of an appropriately experienced local general practitioner such as Dr Van Dissel, and with that practitioner obtaining advice from time to time as and when a cardiologist visited the region. This was the case here.
[65] [2012] SADC 92 at [38].
As I understand the evidence and the submissions of counsel, the appellant at no time had been under the care of a cardiologist in the sense of being directly examined by or having consulted a cardiologist. Dr Van Dissel would from time to time discuss the appellant’s position with whichever cardiologist happened to visit Kapunda from time to time. I understand the practicalities of this situation. It is possible that there are persons living in suburban Adelaide with less serious conditions who are directly under the care of a cardiologist, although there is no evidence before the Court that would enable such a finding. However, it must be the case that even in country areas such as Kapunda there would come a stage where a person’s cardiac condition was so serious that they would need and receive some form of direct intervention and monitoring by a cardiologist. The fact that the appellant was not under the care of a cardiologist in the sense disclosed by the evidence was a material consideration, even “noteworthy”. I am not satisfied that the Judge, in his assessment of the medical evidence as a whole, placed undue emphasis on this fact.
Counsel also complained that insufficient weight was accorded Dr Van Dissel’s opinion, to the effect, that he “expected the stressful situation [of participating in a trial] to have a negative effect on [the appellant’s] medical conditions and possibly could increase the risk of him having a stroke”.[66] Counsel argued that, in this way, the trial might have an effect on the appellant’s life expectancy and that this should be considered in the context of Dr Van Dissel’s further opinion “so I suspect his life expectancy [presumably as at the date of the hearing before the Judge] might be one to two years”.[67] It cannot be ignored that Dr Van Dissel’s opinions in these respects (as in a number of other respects) were couched in relatively uncertain terms. To some degree this is to be expected, even inevitable, given the nature of the subjects, with their inherent unknowns, upon which he was asked to express his opinions. However, this lack of certainty was likely to have been contributed to by the fact that it was a general practitioner, albeit a very experienced one, expressing the opinions rather than, for example, a specialist cardiologist. For this reason, it would have been quite reasonable for the Judge to have accepted these expressions of opinion but to have exercised some caution in his assessment of them.
[66] AB at 102.
[67] AB at 93.
In any event, the Judge expressly adverted to the evidence of Dr Van Dissel on these topics[68] during his discussion of the evidence concerning the appellant’s medical state and I have no reason to think that his Honour did not take these opinions into account. In this respect his Honour also adverted to Dr Van Dissel’s expressed view “that the applicant suffered significant medical conditions which could lead to a stroke, regardless of whether the applicant was in court although the increased stress may increase the likelihood of such an event.”[69]
[68] [2012] SADC 92 at [40]-[41].
[69] At [41].
A related complaint concerned the conclusion drawn by the Judge[70] that “whilst the applicant is of advanced years, and suffers a number of medical conditions which accompany such advanced years, his various conditions appear to be reasonably well controlled. …” Counsel submitted that a finding that the appellant’s various conditions and, in particular, his cardiac state, was “reasonably well controlled” was not supported by the evidence and was in error. Counsel submitted that, notwithstanding that his Honour was there referring to the appellant’s “various conditions”, whatever might be said about his osteoarthritis and some of his other complaints, his most significant medical condition, congestive cardiac failure, could not be described as reasonably well controlled. Counsel pointed to the one third deterioration observed by Dr Van Dissel between February and July 2012 and his evidence that it was continuing to deteriorate and submitted that a condition which, whilst being managed, continues to deteriorate is not to be described as “reasonably well controlled”. It was argued that here, the Judge demonstrated that he had placed “inadequate or insufficient emphasis on the rapid extent of … deterioration”.[71]
[70] At [99].
[71] Appeal transcript at 12.
The expression “reasonably well controlled” invokes relativity. Further, it should not be considered out of context. The phrase was used by his Honour in his concluding paragraph and it must be considered in the context of his Honour’s reasons as a whole. To my mind, the expression used means no more than, notwithstanding that the appellant’s condition was deteriorating to the extent described by Dr Van Dissel in his evidence, it was being managed to an extent sufficient to enable the trial to proceed, albeit on terms. I do not understand the Judge to be expressing a medical opinion as to the success or otherwise of that management in absolute terms. The situation before the Judge was one of an elderly male with a serious heart condition being managed by a general practitioner with the assistance from time to time of advice received from a cardiologist. Such management comprised appropriate drug therapy and hospitalisation from time to time as needed. It did not escape the Judge that the condition was deteriorating. Nevertheless, as a result of Dr Van Dissel’s management and on the basis of the evidence before his Honour, it was not an unreasonable use of words to describe the condition as “reasonably under control”. In any event, the real context for that observation is the question whether the disability, at that time, was of such a nature that the appellant would not be able to withstand the rigors of a properly[72] managed trial without too great a risk of unacceptable consequences for his future health. His Honour formed the view that this was not the case and, in my view, given the medical evidence that was before his Honour, it was open to him to reach that view.
Was insufficient weight given to the appellant’s ability to concentrate and effectively participate in a trial?
[72] That is, with appropriate administrative arrangements in place.
Under this heading counsel for the appellant again relied essentially on the evidence of Dr Van Dissel and, to some degree, the primary medical records in evidence. Counsel referred to Dr Van Dissel’s oral evidence to the effect that the appellant’s general mental function and ability to concentrate had deteriorated significantly over the previous six months and that the combination of general malaise and fatigue from his cardiac condition, combined with pain from his osteoarthritis and his general depression, had adversely affected his level of concentration.[73] Dr Van Dissel also expressed the opinions that the appellant would be able to concentrate on the evidence at trial for a period of one to two hours only and that, if he were required to sit and concentrate for longer periods, the combination of his medical conditions and the stress involved might cause a stroke. Further, even sitting for one to two hours every day, “would have a negative effect on his health”. In this context, counsel reminded this Court of the evidence given by Dr Van Dissel that notwithstanding that the appellant was then in low level residential care, in Dr Van Dissel’s view, he was at a stage where he should be in a nursing home with a higher level of care. As at the time of the hearing before the Judge, the appellant was essentially living independently but with food, basic cleaning and assistance with showering, washing and going to appointments provided. His quality of life was limited by his medical conditions. No nurses were present in this “supportive accommodation” and his medication was not supervised.[74]
[73] AB at 92.
[74] See generally AB at 94-95.
The nub of the appellant’s argument on this issue is in counsel’s submission, “the evidence is that he can tolerate no more than one to two hours before his concentration wanes”. It is accepted that any such waning of concentration would have an effect on the appellant’s capacity to follow the evidence and therefore to give appropriate instructions, his ability to give evidence from his recollection of events and to be fairly subjected to cross-examination. In his affidavit the appellant deposed to having difficulty concentrating for any length of time and that he would struggle to maintain concentration and to combat fatigue during any trial.[75]
[75] AB at 20-21.
Dr Van Dissel provided the following additional evidence when under cross-examination.[76]
[76] AB at 97-98.
QIn terms of his memory, in your opinion does he have any medical conditions that affect his memory.
AMr Jacobi’s memory is quite good. I think his concentration is affected by the pain he gets from his osteoarthritis and from his depression but I think generally his memory and recall of events is quite good.
QWould it be your opinion that there is nothing about his memory and his recall that would prohibit him from sitting in court for one, two or more hours per day and participating in the trial.
AI don’t think his memory would be a negative factor.
QLikewise, I think his Honour touched upon this, would it be your opinion that he could understand what is happening in court in terms of people talking about events of many years ago and being able to understand what’s going on.
AI think he would be able to do that.
QLike many people who might not understand the legal processes per se but he could speak to his lawyer about historical matters.
AI think so, yes.
The conclusion that, provided appropriate administrative arrangements can be put in place,[77] the appellant should be able to concentrate sufficiently so as to allow him to fairly participate in the trial process was open on the evidence. Similarly, provided that the administrative arrangements permitted breaks, as frequently and for as long as the appellant might reasonably require, any significant impairment to his memory (if any), ought not be seen as the product of his medical conditions.
[77] Which may well lead to quite short sitting days and a fragmented and, of necessity, longer trial process.
This issue of the appellant’s capacity to concentrate and to remember, provided suitable trial conditions were in place, was dealt with by the Judge in his reasons.[78] His Honour fairly and reasonably described the problem and the types of arrangements to be put in place in order to accommodate the problem. It is accepted that the trial process is likely to cause significant difficulties for the appellant in the respects complained of. However, like the Judge, I am satisfied that such arrangements can be put in place that will sufficiently ameliorate these problems. In any event, whilst other Judges might have taken a different view about the strength of this factor, particularly given the significant disruption to the normal trial process and inconvenience to all that inevitably will result, I am not persuaded that the Judge in this case failed to consider and reasonably assess the relevant evidence or that he placed insufficient weight on the appellant’s cognitive state, as disclosed in the evidence, when reaching his ultimate decision.
Was insufficient weight given to delay and the consequential loss of documentary and oral evidence potentially relevant to the defence case?
[78] [2012] SADC 92 at [29], [39]-[40], [42]-[43], [94] and [99].
In my consideration of this ground relied upon by the appellant I also deal with the matter raised in (vi) above.
The chronology of this matter demonstrates that there will be a substantial delay (from 25 to 36 years) between the events alleged and any trial. However, the authorities consistently reiterate the proposition that delay, even extraordinary delay, does not of itself amount to an abuse of process and that there must be other factors which would render the continuation of the proceedings unfair or oppressive. In this context Mason CJ in Jago v District Court of New South Wales[79] is often cited.
Where delay is the sole ground of complaint, an accused seeking a permanent stay must be “able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute”. (Citation omitted.)
Deane J said this.
The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first become aware of the alleged criminal conduct and of the material said to prove the accused’s guilt and whether the charge is a complex or a simple one. When that stage is reached, an accused can, if he does not share responsibility for the delay, justifiably claim that the burden of pending criminal proceedings has passed beyond what can be justified in the due administration of justice.
[79] (1989) 168 CLR 23 at 34.
In this case it cannot be said that the prosecuting authorities are at fault or caused the delay. At least, no submission to that effect has been put. The allegations were only reported by the complainants to the police in 2010. Had they been reported earlier, charges with respect to counts one to five could have been laid as from 17 June 2003 and with respect to counts six to 13, as and from when the alleged conduct occurred after 1 December 1983.[80] The fact that this extensive delay has arisen from the delay in making the complaints to the police, rather than dilatory conduct by the prosecuting authorities should carry little weight in this case.[81] The appellant has not submitted otherwise.
[80] Section 76A of the Criminal Law Consolidation Act 1935 (since repealed) provided, in effect, that no information could be laid in respect of various sexual offences more than three years after the commission of the offence in question. Section 76A was repealed by Act number 98 of 1985 which took effect on 1 December 1985. The repeal was retrospective in its effect other than where the limitation period of three years had already expired as at 1 December 1985, R v Pinder (1989) 155 LSJS 565. As far as the present case is concerned the only allegations caught by this time limitation regime were those underlying counts one to five. Counts six to 13 could have been proceeded with as and when they arose. However, s72A of the Criminal Law Consolidation Act was enacted by Act number 14 of 2003, operational on 17 June 2003. The effect of s72A is to abolish any time limitation for the prosecution of sex offences. It provides:
Any immunity from prosecution arising because of the time limit imposed by the former s76A is abolished.
It follows that, as from 17 June 2003, the prosecution would have been free to lay the charges in counts one to five as well.
[81] R v Lane (unreported FCA, Wilcox, Ryan and Higgins JJ, 19 June 1995) cited in R v Davis (1995) 81 A Crim R 156 at 158-159; R v Polyukhovich S3782 (unreported SASC, Cox J, 22 December 1992).
The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:
the reliability or the accuracy of a complainant’s recollections about which evidence is given so many years after the events;
the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child’s contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;
the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and
the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.
These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. Parliament in deciding to lift the statutory immunity must have recognised that these sorts of problems inevitably would confront an accused charged, after June 2003, with historical sex offences. It was left to the courts to decide, on a case by case basis, whether or not prejudice caused by the delay was sufficient to found a stay.
Of course the delay in this matter has permitted the appellant’s health to deteriorate as already described. Nevertheless, the Judge has determined that the prejudice, in this respect, suffered by the appellant can be accommodated and will not necessarily lead to an unfair trial. However, and in addition, the appellant directed the attention of both the Judge and this Court to a number of specific examples of how the delay in this matter has led to the loss or unavailability of evidence that potentially might have assisted the defence case.
BWM motorcycle registration records
It is part of the Crown case that the appellant would collect the complainant SBM from school on a black BMW motorcycle. The appellant in his record of interview has admitted to engaging in a sexual relationship with SBM but at a much later time than as asserted on the Crown case and at a time when SBM was a young adult. To assist in the corroboration of this aspect of the defence and as a direct attack on the credibility of the complainant SBM, the appellant wishes to obtain independent evidence of when he owned the black BMW motorcycle. Motor vehicle registration records for the relevant time periods are no longer available from the Department of Planning, Transport and Infrastructure.[82] In addition, the appellant complains that education department records of SBM’s time as a student at the relevant high school have been destroyed.[83] It is the Crown case that in order to avoid attention when SBM was absent from school a person (the appellant) claiming to be SBM’s father had conversations with the school principal. The appellant complains that it is no longer possible, by reference to the school records, to demonstrate that no record of any such conversation was ever made, which, if so, would cast doubt on the fact that it occurred at all.
[82] Exhibit FJJ6 to the appellant’s affidavit, AB at 59.
[83] Exhibit FJJ5 to the appellant’s affidavit, AB at 57.
In response, the Director submitted, inter alia, that even if there were records to indicate that the appellant did not own the BMW motorcycle during the period of April 1976 to April 1979 when SBM was aged 11 to 14 this would not necessarily undermine the reliability of SBM’s recollection as to the alleged offences. A jury might find his evidence truthful and reliable on these matters notwithstanding that he had incorrectly conflated his experience with the black BMW from a later time. The Crown has submitted, correctly, that there is no clear evidence as to the latest date on which the relevant records might have still been available, that is, the evidence is unclear as to the extent to which the unavailability of the records has been caused by delay.
The appellant’s mother
On the Crown case, the appellant’s mother is said to have been present in the house at or about the time of a sexual encounter with the complainant SBM. The appellant complains that because she is now deceased he has lost the opportunity of adducing her evidence so as to challenge SBM’s account of this particular incident. At the time she was blind and very elderly. Further, it would appear to be common ground that the appellant’s mother died in 1985. As such, there is force in the Director’s submission that even a short delay in the reporting of the incidents would have meant that the appellant’s mother was unavailable to provide a statement or to give evidence at a trial. There is also force in the Director’s submissions, to the effect, that it is simply not possible to know whether the mother, had she been available, would have been able to recall the events in question and whether any evidence she would have been able to give would necessarily support a version inconsistent with that of the complainant. On the basis of SBM’s witness statement the mother’s evidence could at best be only of peripheral assistance to the defence. She is said to have been outside a bedroom and crying at a time the appellant sexually assaulted SBM inside the bedroom.
Loss of solicitor’s file
It is common ground that in 1996 the appellant gave a substantial sum of money to the complainant SJWM in exchange for his executing a deed purporting to release the appellant from civil liability with respect to various allegations of misconduct. Some of the documentary evidence relevant to that transaction remains available and was tendered at the hearing below.[84] This documentation was produced from the possession of the appellant. However, it is not a complete documentary record of the negotiations and the transaction that occurred. The appellant complains that his solicitor’s file, which would, it is presumed, contain a far more comprehensive documentary trail and a copy of the missing deed itself, is no longer available.[85] The appellant submitted that the documentary evidence that is available might permit unreliable and prejudicial inferences to be drawn and that the appellant’s defence will be prejudiced in not having available to it the complete documentary record. The Director submitted that the documentation, that is in existence, has probative value for the Crown case with respect to the complainant SJWM, and that the appellant’s recollection does not appear to have been affected by the lack of availability of any additional documents.
Loss of evidence caused by delay - general considerations
[84] AB at 172-175.
[85] Exhibit FJJ7 to the appellant’s affidavit, AB at 60.
A problem for both the appellant and the Court is that whilst certain sources of evidence, as described above, are no longer available, there is no way of knowing what further probative information, if any, would have been available to the defence but for the loss of these sources of information. With respect to these evidentiary issues, each of the two legal teams has their instructions which are in conflict. To take the motor registration documents by way of example, a search of the records at the time they were available might have produced registration details for a black BMW supportive of the complainants’ allegations or supportive of the appellant’s.[86] The Court is simply not to know. There certainly is a potential for the appellant to have been prejudiced in this respect. However, as matters stand, he may have been saved the embarrassment of unearthing evidence corroborating the Crown case in this respect.
[86] That is assuming, which does not appear to be in contest, that at some stage the appellant owned a black BMW motorcycle and a proper record of its registration details had been retained.
The Judge below addressed these evidentiary concerns.[87] His Honour made specific reference to the nature of the directions that might need to be given to a jury as envisaged and permitted by s34CB of the Evidence Act 1929. His Honour was satisfied that, in the circumstances of this case, the forensic disadvantages identified, to this point, by the appellant could be sufficiently ameliorated by appropriate jury directions and that a fair trial, in the sense identified by Cox J in R v Polyukhovich,[88] could be achieved. I am not persuaded that his Honour took an improper approach to his assessment of these matters and the weight to be accorded to them.
[87] [2012] SADC 92 at [64]-[83], [88] and [95]-[99].
[88] S3782, unreported SASC, Cox J 22 December 1992.
Public interest and the balancing exercise
In considering whether or not to grant a permanent stay of criminal proceedings the court must undertake a weighing process. I return to the guiding proposition set out in the joint judgment in Walton v Gardiner.[89]
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by 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.
This balancing exercise has been described in other terms by the Court of Criminal Appeal in this state.[90]
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
[89] (1993) 177 CLR 378 at 395-396, per Mason CJ, Deane and Dawson JJ.
[90] R v Ulman-Naruniec [2003] SASC 437 at [24] per Bleby J with whose reasons Besanko J, in general, agreed.
The “balancing exercise” referred to in the authorities, ordinarily, will have work to do. The nature and extent of any perceived unfairness must be weighed against the public interest in an effort to determine whether or not a continuation of the prosecution, as Bleby J has put it, “will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice”.
The public interest in the disposition of charges of serious criminal offences involving alleged sexual abuse is manifest. There also is a public interest in complainants, concerning such matters, having the opportunity to present their allegations in court so as to seek public vindication. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court. In addition, although I have no evidence and I am in no position to make any findings in this next respect, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the complainants concerned which, of itself, can be in the public interest. The fact that these complainants have not yet had their day in court before a judge and jury or a judge sitting alone is a relevant consideration when determining whether or not to grant a stay.
Conclusion
In R v Polyukhovich[91] Cox J observed that “a fair trial is not the same as a perfect trial”. The fact that unfairness, even irreparable unfairness, and whether or not it derives from delay, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of an assessment of the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest, in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice[92] will not be constant across all criminal proceedings.
[91] S3782, unreported SASC, Cox J 22 December 1992.
[92] Walton v Gardiner at 395-396.
The matters relied on by the appellant as indicative of unfairness and oppression have, to some degree, been dealt with in these reasons separately and in a fragmented manner. However, ultimately it is their effect in combination that must be assessed in the context of the necessary balancing exercise. The Judge below approached the matter in this way.[93] His Honour recognised that the appellant will be labouring under a number of difficulties and disadvantages at the trial and that these were the product of his poor health, his advanced years and, ultimately, the extensive delay in bringing the matters to trial. His Honour considered the various steps available by which the extent of this prejudice could be ameliorated. His Honour had regard to the public interest and exercised the balancing process called for by the authorities.
[93] See generally [2012] SADC 92 at [84]-[100].
After reviewing the Judge’s approach and the evidence upon which it was based, I am not persuaded that his Honour acted upon a wrong principle, overlooked or placed insufficient weight on any material consideration or took into account any irrelevant considerations. The decision reached was not so unreasonable or plainly unjust as to indicate error. It was for these reasons that I joined in the dismissal of the appeal.
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