R v KF

[2011] NSWLC 14

Local Court

New South Wales

Medium Neutral Citation:	R v KF [2011] NSWLC 14
Hearing dates:	7/04/2011
Decision date:	19 May 2011
Jurisdiction:	Criminal
Before:	Magistrate Heilpern
Decision:	The application is dismissed, and an urgent hearing date will be allocated.
Catchwords:	CRIMINAL LAW - application for permanent stay of proceedings - defendant suffering from dementia and adjustment disorder with depressed mood - whether defendant fit to be tried - Presser test
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Connelly v DPP [1964] AC 1254 Grassby v The Queen (1989) 168 CLR 1 Jago v District Court of NSW (1989) 168 CLR 23 Mantell v Molyneux [2006] NSWSC 955 Police v AR (Children's Law News, 18 November 2009) R v Basha (1989) 39 A Crim R 337 R v Littler [2001] NSWCCA 173 Ngatayi v R (1980) 147 CLR 1 R v Presser [1958] VR 45 Watson v Attorney-General (NSW) (1987) 8 NSWLR 685
Category:	Procedural and other rulings
Parties:	Crown KF (Defendant)
Representation:	Mr G Kumarasinhe for the Defendant Mr Baker, Police Prosecutor
File Number(s):	2010/212005
Publication restriction:	It is an offence to publish the name, or any information that identifies a complainant in certain sexual offence cases.

JUDGMENT

1. An application has been made for a permanent stay of proceedings, and this judgment gives reasons for the dismissal of that application. As this is the second such application I have dealt with in a matter of months, I have put my reasons in writing lest there be any assistance to other magistrates considering such an application, and so that my reasons are clear for both parties to consider.

1. The defendant, KF, was born in 1931. He has no prior convictions, has been married for the past 55 years, did not attend high school and has farmed for all of his working life. He has a seriously disabled granddaughter (who I shall refer to as A) who is aged in her 20's and has been diagnosed with PCDH19 gene mutation. A's cognitive ability is similar to a three-year-old child. She resides in specialist intensive supported accommodation.

1. During a visit with A, the defendant is alleged to have deliberately rubbed her breast for sexual gratification. The facts state that a disability support worker witnessed the incident and reported it to the Program Co-ordinator immediately who contacted the police.

1. The defendant has been charged with aggravated indecent assault. An application has been made that these proceedings be permanently stayed as the defendant, through his legal representative, claims that he is unfit to be tried.

1. This judgment is written without the benefit of the transcript of the submissions from the parties.

Legal Issues

1. There are five legal issues which need to be considered before moving to the evidence supporting the application:

• "Fitness to Plead" or "Fitness to be Tried"
• Permanent Stay in the Local Court
• The onus and standard of proof
• The " Presser " test
• Later cases

Fitness to be Tried

1. During the application, the term "fitness to plead" was used synonymously with "fitness to be tried" by defence counsel. In my view, the latter term is the correct nomenclature for such an application. Fitness to plead, that is to enter a plea of guilty or not guilty, may be an element of fitness to be tried, however it is not the only element as discussed below.

1. Part 2 of the Mental Health (Forensic Provisions) Act 1990 relating to "Unfitness to be Tried" and "Special Hearings" specifically applies only to the District and Supreme Court and not to the Local Court (see s 4 of the Mental Health (Forensic Provisions) Act 1990). Thus there is an hiatus in respect of legislative direction on fitness to be tried issues in the Local Court

Permanent Stay in the Local Court

1. There is ample authority for the proposition that the Local Court has the power to permanently stay proceedings where the charge is one that would ordinarily be dealt with to finality in the Local Court: see Jago v District Court of NSW (1989) 168 CLR 23. In indictable matters, the position is less clear. In Grassby v The Queen (1989) 168 CLR 1 Dawson J at 10, 16 and 17 said:

10. In Connelly v DPP views were expressed, notably by Lord Devlin and Lord Pearce that every court has a power to decline to hear proceedings on the ground that they are oppressive and an abuse of process of the court.... Whether such comments were correct in relation to inferior courts exercising ordinary judicial functions has been doubted, but it is clear that they do not extend to a magistrate hearing committal proceedings.

...

16. On the other hand, a magistrate's court is an inferior court of record with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise.

17. It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be derived by implication for statutory provisions conferring particular jurisdiction.

1. Lord Pearce in Connelly v DPP [1964] AC 1254 said at p 449:

"The Court has, I think, a power to apply, in the exercise of its judicial discretion, the broader principles to cases that do not fit the actual pleas and a duty to stop a prosecution which on the facts offends against those principles and creates abuse and injustice".

1. The charge against the defendant is a Table One offence; that is it is an indictable offence which may be dealt with summarily absent election by the Director of Public Prosecutions. In his case, the DPP has not elected, and the Local Court was notified of this on 16 September 2010 and again on 18 November 2010. In my view, where there has been no election by the DPP, the court is vested with the necessary power to permanently stay the proceedings. The prosecution did not cavil with that proposition.

1. There is some debate as to whether the application, if successful, leads to a permanent stay of proceedings, or a discharge of the defendant. On point is the following passage in Mantell v Molyneux [2006] NSWSC 955 per Adams J at 28 and 29

Even though, in the case of a charge being heard in the Local Court, there is no statutory enactment either dealing with determination of the question of fitness to be tried or as to what should occur if a person is found unfit to be tried, it seems to me that, where a defendant is found not fit to be tried, he or she must be discharged. So much is the effect of the judgment in Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ- ...If the incapacity is due to unsoundness of mind the accused will of course be dealt with in accordance with the provisions of the legislation in force on the subject of mental health, but in a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such a case no doubt he should be discharged. In this case there is no relevant mental disability that would bring the appellant within the provisions of the Mental Health Act and the consequence must be that, if unfit to be tried, she must be discharged; see also Pioch v Lauder [1907] VicLawRp 90; (1976) 13 ALR 266.

1. This was also the result in Police v AR (Children's Law News, 18 November 2009) discussed below where Judge Marien sitting as President of the Children's Court made an order as follows:

The appropriate order is therefore that those proceedings be dismissed and the defendant be discharged with respect to those proceedings.

1. This is curious, as I would have thought that discharge is only available as a result of a successful s 32 application, and not for a permanent stay. Thus, the result of an application for a permanent stay would be an order permanently staying the proceedings, not discharging the defendant. Nevertheless, the authorities above are at the very least highly persuasive, and in the absence of authority to the contrary, I would be minded to make an order discharging the defendant.

The Onus and Standard of Proof

1. The onus is on the applicant to satisfy the court on the balance of probabilities that the applicant is not fit to stand trial. In R v Basha (1989) 39 A Crim R 337 Hunt J said at 338:

The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of such a trial is in the relevant sense unacceptable to the extent that the trial would be unfair: Barron v A-G (1987) 10 NSWLR 215 at 219

1. It is clear that a permanent stay is a remedy which is unusual, and ought be granted only in the most extreme of cases: see Watson v Attorney-General (NSW) (1987) 8 NSWLR 685. Mason CJ in J ago v District Court of NSW at p 34 said:

"To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".

1. More recently, Hodgson JA expressed the opinion that an applicant for such an "extraordinary remedy" bears a "heavy onus": R v Littler [2001] NSWCCA 173.

1. There are of course practical and evidential problems in the Local Court in dealing with such applications. In the higher courts, the practice is that the Crown arranges for the assessment of the defendant by an expert of the Crown's choosing. That is most unlikely in the Local Court. Thus, usually, the only evidence will be the defendant's psychiatric report and other reports. There are no matters of this type I am aware of where the prosecution has even sought to cross-examine the authors of the reports.

1. There are special reasons to be cautious in dealing with these matters in the Local Court. Firstly, the result of a successful application is that the proceedings are stayed or the defendant is discharged. There is no supervisory regime, treatment plan, conviction, criminal record or detention as in the higher courts. Secondly, there are well known cases where people have successfully feigned physical and mental conditions, which later turn out to be fictional devices to avoid liability. Thirdly, there is no ability to return the matter to court should the defendant not comply with a treatment regime as there is with matters dealt with under s 32. Finally, there is no "seriousness" test in an a stay application - the Local Court deals to finality with matters of increasing seriousness - as there is in a s32 application.

The "Presser Test"

1. In R v Presser [1958] VR 45, Smith J said at 48:

"He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an enquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel, he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and his counsel, if any."

1. In Mantell v Molyneux the appellant was charged with an assault arising out of an incident where she wielded a knife at her brother. The tendered reports revealed the appellant as a vulnerable person with a history of mental health issues compounded by long-term alcohol abuse and intellectual disability, at significant risk of self-harm. The picture was complicated by a long history of severe sexual abuse by the appellant's foster father. The appellant had periodic involvement with Disability Services over a period of about ten years. She had been admitted a number of times to the Shellharbour Hospital Psychiatric Unit and was plainly distressed on many occasions when workers had attempted to counsel and assess her. Caseworkers were of the view that it was inappropriate for the appellant to appear in relation to her court matter, as there was a substantial risk of increased symptoms of anxiety, self-harm and relapse into alcohol consumption. Orders had been made by the Guardianship Tribunal giving the Guardian custody of the appellant to the extent necessary to determine where the appellant could reside, what health care and medical treatment she may need and make decisions on her behalf concerning major services to which she should have access. The appellant was housed in fully supervised mental health accommodation. She was medicated with Celepram and Largactol daily

Mr Hudman, a psychologist, had written a report after the benefit of consultations with and reports from relevant and qualified personnel who had been dealing with the appellant over a considerable period of time. Mr Hudman himself had interviewed the appellant on a number of occasions. His report contained the following - "Interviews with [the appellant] regarding an assessment of her understanding of court processes (in particular her foundational and decisional competence) were conducted over several sessions to allow time for rapport to be established. Several interviews also provide a better indication of her ability to retain new information over time. During the sessions, [the appellant] demonstrated some knowledge as to her solicitor's name, but did not understand the roles of the basic elements of the court, such as the prosecutor, judge, jury or what a plea was. Nor was she able to demonstrate an understanding of the words guilty or innocent. Furthermore, [the appellant] was not able to discern between a truth and a lie. It is considered unlikely that [she] would be able to use reasoning to either relate relevant information to her legal counsel or make informed choices about alternate courses of action in making decisions in her defence. Decisions may have been further impeded if she was intoxicated at the time of the offence. [The appellant] has little appreciation of her current legal predicament and was unable to state what outcomes may occur from her impending court appearance. [The appellant] was able to understand the conditions of a bond after it was explained to her." He concluded that the appellant's functional independence was limited to very limited, with her performance comparable to that of an average person aged between nine and ten years. Similar assessments were made of her motor skills, her social interaction and communication skills and her personal and community living skills.

1. Mr Hudman was of the view that whilst the appellant understood what she was charged with, she did not understand what it meant and did not understand the possible outcomes; she did not understand the difference between a serious offence and a minor one, having a view that all offences are serious and everything at court would lead to her being imprisoned; although the appellant would say guilty or not guilty she would not know what such a plea meant; she did not understand the difference between the truth and a lie; it is very likely that she would simply be mute. Mr Hudman thought that, due to the appellant's low level of cognitive ability the appellant would not understand the nature of the proceedings and pointed out that, in the proceedings before the Guardianship Tribunal, where DADHC workers explained to her several times what was happening, it was clear that she did not comprehend these proceedings at all. Mr Hudman thought that the appellant would not be able to follow the course of proceedings as she was unable to follow abstract ideas or events and could not follow sequences, with a poor ability to recall new information or even things that are shown to her. Nor would the appellant follow the substantial effect of the evidence given against her, in particular evaluating it in the light of her own experience of events. Although the appellant could say what did or did not happen she could not, in Mr Hudman's opinion, evaluate the significance of what happened and, in particular, her own intentions or motivations at the time, for example the effects of intoxication, any fear of being beaten herself or whether she could have simply departed from the scene. Indeed, Mr Hudman thought that she could not give evidence in chief without being prompted. Mr Hudman thought that she would not be able to give her version of events to the court, would probably be unable to decide what defence to rely on and would have significant difficulties in following cross-examination.

1. Ms Pikett, the solicitor for the applicant gave evidence concerning her communication with the appellant over a long period of time, concluding that the appellant did not understand her role as her lawyer, or the roles of the prosecutor or the magistrate, how the court functioned, what "guilty" and "not guilty" mean and what happens in court. Ms Pikett said that if the appellant was required to give evidence, she would be stressed, frightened, intimidated and in all likelihood remain mute; she would also be likely to agree with everything put in a leading question and would disagree with anything that her brother said in the witness box. The court found that having regard to the length of Ms Pikett's connection with the appellant, her evidence ought be given considerable weight.

1. As in this case, the prosecution called no evidence, nor did they seek to cross-examine the medical expert. I have repeated this material in some length to show the extensive, long term and detailed features of the evidence in that case.

1. Adams J found that the Magistrate erred in finding that the applicant was fit for trial and said at 32:

It is evident that the prosecution and, for that matter, the learned Magistrate accepted that the evidence of both Mr Hudman and Ms Pikett was both accurate and reliable. In dealing with that material, as appears from the extract of the learned Magistrate's judgment which I have set out above, his Honour concluded that the appellant had some ability to understand the proceedings, noted that she had given a version of events and, I think, accepted that she was handicapped both in giving evidence and responding to other evidence given in the proceedings, these being matters which the court "would have to take into account".

33 It seems to me, with respect, that the learned Magistrate erred in considering that a balancing process was involved in determining whether it would be fair to conduct a trial in the circumstances. If a defendant is not fit to stand trial in the Presser sense, the trial is by virtue of that very fact necessarily unfair and the public interest in the trial of the person charged with criminal offences must give way. Some elements of unfairness may be able to be overcome by, for example, requiring the cross-examiner not to put leading questions to the appellant, but such an order strikes me as involving an inappropriate interference with the conduct of the trial by the prosecution. It is difficult to think of any other orders that might compensate for the fundamental limits in understanding and ability to communicate, especially an ability to communicate in the court environment, which were identified by Ms Pikett and Mr Hudman.

34 As the Crown Advocate pointed out during submissions in this Court, the learned Magistrate did not make any finding that the appellant was unfit for trial. His Honour approached the question facing him as being whether he could, by making some adjustments in the way in which the proceedings were undertaken, ensure that the trial was fair.

35 In my view, the question of fitness for trial is fundamental. In some cases, adjustments can be made to overcome the defendant's unfitness, as by providing a deaf person with a signing interpreter. But this is not to make the trial of a person who is unfit for trial a fair one: it is to remove the unfairness.

36 In my respectful opinion, there were no orders that the Court could have made that were capable of overcoming the appellant's unfitness. Where a defendant does not understand the nature of a plea, the elements of the charge and the essential nature of the proceedings, it does not make such a trial fair even though he or she is able to give a version of events. At all events, a fundamental problem identified both by Mr Hudman and Ms Pikett was that the appellant was simply not in a position to give that version of events in the court environment and deal with even an entirely proper cross-examination. Sympathetic allowance for the appellant's problems in this regard does not overcome the fundamental unfairness which her unfitness in respect of these matters demonstrates. This is not less so because it appears, as it happens, that the appellant has a good defence to the charge which might well result in her acquittal.

1. In the case of Police v AR , Marien DCJ sitting as President of the Children's Court of New South Wales was considering an application under s 32 and for a permanent stay for a young person who was charged with serious offences. Some of those offences were clearly Children's Court matters, and others were capable of committal to higher courts. Accordingly, there are jurisdictional issues not relevant in this case.

1. The facts alleged in AR were essentially a carjacking, a serious assault and a daylong deprivation of liberty.

1. The evidence supporting the application was from a wealth of health and care professionals, including a report from Dr Susan Hayes, who found that the applicant had a mental age of a pre-school child or a child in the early years of primary school:

Dr Hayes is of the opinion that the defendant is unfit to plead. She states that he does not know the charges against him and does not understand what a plea of guilty or not guilty means. She states that he did not in any way understand what the court proceedings were about. She states he does not show any capacity to follow the course of the proceedings or to be able to remember or understand any evidence which may be given against him. She expresses the opinion that he cannot make his defence or instruct his counsel or solicitor about what his version of events is, because he cannot remember anything about what occurred. As I have said, the prosecution did not request her or any of the other experts who prepared reports to be present for cross-examination.

1. This contention was supported by other health practitioners, including the DADOC Psychiatrist Dr Dossetor:

Dr Dossetor states that at his review of the defendant in May 2009 he observed that he did not recognise any of the familiar faces, did not remember what he had done from day to day and had no capacity to plan his day or to anticipate the future. Dr Dossetor states, "AR clearly has no capacity to know whether something is right or wrong." Dr Dossetor states that he generally observes the defendant's moral development as like that of a two to three-year-old child.

1. The evidence was further corroborated by junior counsel for the applicant who attested to her attempts to obtain instructions:

She deposes that she has not been able to do so. Ms Cook deposes that while she used basic English and basic concepts during those conferences, it appeared to her that the defendant was not able to understand her role as his lawyer, was not able to understand the role of the prosecution or the magistrate, was not able to understand the nature of the charges laid against him or the nature of the proceedings or the effect of the evidence against him; was not able to understand what is meant by pleading guilty or pleading not guilty, was not able to make his defence or answer the charges and was not able to provide a version of events or instructions. She also deposes that the defendant has not been able to follow her advice or respond appropriately when questioned. The prosecution did not seek to cross-examine Ms Cook.

1. Marien DCJ concluded:

However, it is to be remembered that the Presser tests do not include whether the defendant has some degree of memory loss or whether the defendant has difficulty verbalising demands or is able to independently make decisions. The Presser tests are directed to the question whether a defendant comes up to minimum standards which the defendant needs to attain before he or she can be tried without unfairness or injustice.

As I have previously stated, under the Presser tests the defendant needs to understand what he or she is charged with, needs to be able to plead to the charge and to exercise the right of challenge. The defendant needs to understand generally the nature of the proceedings and needs to be able to follow the course of the proceedings and be able to make their defence or answer the charge, instruct counsel and if necessary, tell the court their version of events. On these specific issues, the expert evidence, as well the unchallenged evidence of Ms Cook, all point in one single direction, namely, that the defendant is unfit to plead and is incapable of understanding and participating in the criminal proceedings.

1. It should be noted that the court draws a clear distinction between having some degree of memory loss and having difficulty in verbalising demands and the minimum standards of the Presser test.

The Evidence for the Applicant

1. The sole evidence for the applicant was a report from Dr Bruce Westmore together with his CV and medical notes. Dr Westmore saw the applicant once, and consulted with no other health professionals. It is apparent from that report that the applicant is suffering from Dementia and from Adjustment Disorder with depressed mood.

1. On the issue of fitness Dr Westmore opines at p 6:

"while he has a reasonably good understanding of the various roles of the people in court, he also understands what he has been charged with and how he wishes to plead to the charges, my principle concern about his fitness is his identified cognitive problems. His ability to recall information during the trial will be compromised because of his cognitive difficulties. In addition his ability to express himself in a clear and precise way will also be compromised because of his problems with communication. Increased anxiety in the court situation will aggravate these difficulties. His ability to provide his legal representatives with clear consistent and ongoing instructions during a trial will be affected by his cognitive deficiencies and that is why I think he should be considered to be unfit. As noted earlier, this condition will not change in the next 12 months."

1. I note that this opinion was reached after the application of a test which indicated "the presents (sic) of mild dementia" and his "clinical presentation at times was more consistent with moderate dementia" particularly when anxious or under pressure.

1. It is apparent from the report that the applicant knows the nature of the charges he is facing, states that he is not guilty, gives an alternate scenario and has a detailed knowledge of the role of the Magistrate, the jury, the oath, sentencing, witnesses and the truth.

1. The applicant though submits that this report supports a conclusion that in any trial the defendant would not be able to properly instruct his legal representatives. This is based upon the conclusion of Dr Westmore.

1. The prosecution contends that the report suggests his immediate recall is intact, he asserts clearly that he is not guilty, that he understands the allegations against him, that he has a precise recollection of the events which occurred and an innocent explanation is provided that he was simply looking for a ball which had fallen down the front of the alleged victim. The prosecution contends that the applicant understands the nature of the proceedings.

1. I agree with the submissions of the prosecution, and there is evidence contrary to each aspect of the Presser test in the report. A careful reading of the report shows that the applicant understands what he has been charged with, he understands the nature of the proceedings and he has a version of events about which he can instruct counsel. It is insufficient that his ability to provide counsel with "clear and consistent" instructions will be "affected by his cognitive difficulties". I can take judicial notice that clients often cannot provide counsel with such instructions unaffected by cognitive difficulties.

1. Mr Kumarasinge counters such contentions with the conclusion of Dr Westmore that he ought be "considered unfit". With respect to Dr Westmore, his ultimate opinion as to whether the applicant is unfit to stand trial is not conclusive. That is a judicial and legal determination, not a medical one. The value of the report lies in Dr Westmore's observations and testing of the applicant, his discussions with family, and the appraisal of that material based on medical knowledge to make conclusions as to the defendant's state of mind and abilities.

1. There are also notable differences between the evidence in this case, and that of Mantell v Molyneux and Police v AR. In this case there is a notable absence of evidence from his lawyers, general practitioners and health professionals who have been dealing with the applicant for a period of time. There is no evidence of guardianship, or of an inability to distinguish truth from a lie. Dr Westmore saw the applicant once. In Mantell and AR the corroborated evidence was that the applicant did not understand the role of the defence lawyer, or the roles of the prosecutor or the magistrate, how the court functioned, what "guilty" and "not guilty" mean, what happens in court, or what the outcomes of court could be. A specific mental age was arrived at in each of the other cases, again absent in the present case.

1. I am not satisfied on balance that the Presser test has been met, or that there could not be a fair trial for this defendant. Indeed, it is imperative that an early hearing date be obtained, lest the defendant deteriorates further.

1. Defendants come in all shapes and sizes, some with good memories, and some with poor. Some defendants have high cognitive function, and some have low. Some are colour-blind, hopeless at calculating distances and cannot estimate time in minutes. For many defendants without English as their first language they are inhibited in understanding the nuances of prosecution witnesses, even with interpreter assistance. There is much in the literature regarding the dangers of asking leading questions, eye contact and the trial process with unsophisticated aboriginal defendants. For the uneducated, expert evidence often flies completely over their head. Under pressure, many defendants find it difficult to remember important matters. These are all matters that may disadvantage defendants, but they do not make for an unfair trial.

1. It is for this reason that the majority of the High Court in Ngatayi v R (1980) 147 CLR 1, said that the test of capacity or fitness needs to be applied in a "common sense fashion" and that the accused "need not have the mental capacity to make an able defence or to act wisely in his own best interests".

1. In my view, this case is typical of where a person's memory is fading as a result of Alzheimer's disease. That is a tragedy, however it does not make for an unfair trial. The trial may need to have more time allocated than normal, there may need to be breaks to allow counsel to work through evidence and obtain instructions more slowly and cross-examination will need to be more cautious and perhaps more gentle than usual. Allowances such as this can easily be made.

1. The delay in this case has been occasioned in part by this application being made on a hearing date. The prosecution witnesses were there, ready to give evidence. In future, the intention to make such an application ought be made at the time the matter is set down for hearing, and a timetable for service of reports, medical examinations and responses can be made. In appropriate cases no doubt a stay would not be opposed by the prosecution negating the necessity for the hearing date to be kept. Springing such an application on the court and the prosecution on a hearing date does not assist in the effective administration of justice.

Orders

1. The application is dismissed, and an urgent hearing date will be allocated.

Decision last updated: 24 May 2011