R v Littler

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: REGINA v LITTLER [2001] NSWCCA 173

FILE NUMBER(S):
60144/01

HEARING DATE(S): 7 May 2001, 11 May 2001, 16 May 2001

JUDGMENT DATE: 04/06/2001

PARTIES:
Regina

John Aloysius Littler

JUDGMENT OF: Hodgson JA Greg James J Adams J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/11/0330

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

COUNSEL:
Mr M C Marien (Crown)
Mr Greg Walsh (Solicitor) (Applicant)

SOLICITORS:
S E O'Connor (Crown)
Greg Walsh & Co (Applicant)

CATCHWORDS:
Stay of proceedings
alleged offences occurred 38 to 46 years before trial
applicant 74 years old in ill health
long and short term memory problems
whether relevant if normal
directions not capable of ensuring fair trial
stay granted

LEGISLATION CITED:

DECISION:
Leave to appeal granted, the appeal upheld and further proceedings on the indictments be permanently stayed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60144/01

HODGSON JA
GREG JAMES J
ADAMS J
MONDAY 4 JUNE 2001

REGINA v John Aloysius LITTLER
JUDGMENT

HODGSON JA: The circumstances surrounding this application are set out in the judgment of Adams J. I agree with Adams J that there were errors in the way that the primary judge dealt with the medical evidence, although I would characterise the errors slightly differently.
Although the evidence of Dr. Langluddecke and Dr. Westmore was plainly against the view that the applicant was unfit to be tried, this evidence was not, as suggested by the judgment of the primary judge, plainly against the view that his health and memory were such that a trial would be unfair. As Adams J has shown, in some respects their evidence tended to support such a view.
In my opinion also, the trial judge too readily equated the applicant’s ability to remember significant features of his life history with ability to remember matters relevant to a defence of these charges. As Adams J points out, if the applicant is guilty he could be expected to remember the alleged events as significant features of his life, but if he is not guilty (as presently presumed) then matters relevant to a defence of the charges would not be significant features of his life. And the primary judge’s statement that Dr. Westmore “clearly ... did not believe” the applicant’s claim of lack of memory is not in my opinion supported by Dr. Westmore’s evidence. At the close of his oral evidence, Dr. Westmore accepted that there had been no deliberate obfuscation or deliberate misleading by the applicant.
Accordingly, I agree that this Court should consider for itself whether a permanent stay should be granted.
As shown by Jago v District Court of New South Wales (1989) 168 CLR 23, a permanent stay is a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process.
In my opinion, an applicant for such an extraordinary remedy bears a heavy onus, and, if not unfit for trial, should normally be prepared to state on oath what he or she says would be the particular difficulties he or she would face in dealing with a trial of the charges brought.
In expressing this opinion in relation to this application, I have regard not only to the public interest in having a determination of the guilt or innocence of a person charged with serious offences, but also the interests of persons claiming to have been severely damaged by the alleged actions of the applicant. These actions, if they occurred, would have been done in circumstances where early detection was unlikely, and where there was a real possibility that complainants may be willing and able to bring complaints only many years later. In this case, complainants have now come forward, and made statements which, if true, both indicate most serious and damaging criminal activity and also make it understandable why there has been so much delay, at least until 1994. For myself, I would feel a sense of injustice to complainants such as these if a person charged with such offences could apply for and obtain a permanent stay, on the grounds such as those relied on in this case, without going so far as to state on oath what he says are his difficulties in dealing with the allegations.
I note that where such an affidavit is put on, and the application for stay is refused, the affidavit would be material which could be used against the applicant at a trial, subject to discretionary considerations. However, in my opinion, an applicant would not have to submit to cross-examination on the affidavit in the application, unless he or she elected to do so. If the affidavit were not permitted to be read without cross-examination, in my opinion it could be tendered as an exhibit, both as hearsay admissible in an interlocutory application, and also as direct evidence of what the applicant is prepared to say on oath and could, if he or she chose, say on oath at any subsequent trial. Of course, the applicant could choose to be cross-examined, and depending on what happened, this could add to or detract from the effect of the affidavit.
Before judgment was given in this case, I conveyed views along these lines to the parties, and the applicant sought an opportunity to put on such an affidavit. That opportunity was granted, for the reason that the desirability of such affidavit had apparently not previously been articulated in this way. The affidavit was filed, and sought to be read without cross-examination. The Crown did not oppose receipt of the material to assist this Court in deciding what course to take, if this Court were first of the view that error was shown.
The affidavit did in my opinion confirm the memory and other difficulties discussed by Adams J. Despite the lack of cross-examination, in my view it does carry some weight: the applicant has put himself on oath as to a position to which he would be committed if a stay were refused.
With the assistance of that affidavit, I am of the view that the grounds for a permanent stay expressed by Adams J are made out.
I would also add that I do not agree with the view of the primary judge that there have been no delays since 1994 that would justify criticism of the prosecuting authorities. R v Tillott (1995) 38 NSWLR 1 was decided on 1st September 1995; and accordingly I find it difficult to understand how it was that the prosecuting authorities proceeded to commence committal proceedings in November 1996 without disclosing that a number of complainants/witnesses had been subjected to the EMDR procedure, apparently intending to call their evidence in disregard of the decision in that case. That caused a delay, which in my view does justify criticism of the prosecuting authorities.
GREG JAMES J: I have had the advantage of reading the judgments of Adams, J and Hodgson, JA in draft.
Adams, J has set out the circumstances of the appeal. I agree with the orders he proposes and his reasons.
Further, I agree with Hodgson, JA that the medical evidence was far from ruling out that a trial would be unfair. On the grounds to which each of their Honours refers, I agree that the trial judge erred and that it falls to this court to determine whether stays should be granted.
For the reasons he has given, I agree with Hodgson, JA. that on an application of this kind, sworn evidence from the applicant, at least to the effect he has referred to, should be given.
That evidence having been given here, I join with the other members of the court in agreeing that the stays sought should be ordered.
For myself, I would add that the circumstances of the case are so unusual, the time since the events so long, and the applicant’s prospects, as proved by the evidence, of remembering so doubtful, that I an unable to propose a direction which would enable a fair trial to be had.
Such a direction, in this case, would, in my view, need to meet more than the requirements posed by the judgments of Gaudron, Gummow and Callinan, JJ. In Crampton v. The Queen [2000] HCA 60 (23 November 2000) at paragraph 45. Adams, J cites the relevant passage which I need not here repeat.
Trials as were here indicated in which, after so many years, each complainant is called, without any other evidence which might reflect upon the credibility of his account, and in which the accused is affected by the problems, the evidence here shows he is affected by, would, in my view, be unfair. What could the accused use to test that evidence after so long, if he were not guilty? All he could do would be, as he has here, to assert his lack of memory and a general denial. What direction could then be given which would ensure the jury could give appropriate regard to the handicaps to proper appreciation of the accused’s position? Since, in my view, there is no appropriate solution to the difficulties answering these questions exposes the trials should be stayed.
ADAMS J: In June 1996 the applicant was charged with sexual assaults in respect of a number of complainants including, in particular, William Hurst and Wayne Merry. Committal proceedings commenced in November 1996. After several interruptions, he was committed for trial on 13 April 1997. One cause of delay was the failure of the prosecution to provide details of EMDR therapy undertaken by a number of the complainants. Another delay arose from the need for the applicant to undergo heart surgery. Two indictments were ultimately preferred against the applicant who moved in the District Court for a permanent stay in respect of all charges. The application was heard by Maguire DCJ who, on 28 February 2001, stayed a number of counts but declined to stay those relating to Messrs Merry and Hurst. The applicant seeks leave to appeal in this Court from that part of his Honour’s judgment declining to grant a stay
So far as Mr Merry is concerned, the indictment alleges a single offence committed between 1 January and 31 December 1963 when he was 11 years of age whilst, in respect of Mr Hurst, a separate indictment (thus requiring a separate trial) alleges five offences, of which one occurred between 1 January 1955 and 31 December 1955, two between 1 September and 31 December 1957 and two between 1 May and 30 September 1958, when he was 11 years of age. Taken together, the applicant is to face trial for offences allegedly occurring between thirty eight and forty six years ago. The applicant is now aged seventy four years and is in ill health.
Although, as I have said, only one count of the relevant indictment alleges an indecent assault by the applicant against Mr Merry, the complainant’s statement to the police, which was made on 14 May 1994, alleged that assaults, involving the applicant masturbating himself and causing Mr Merry to masturbate him to the point of ejaculation in the applicant’s bed at the Westmead Boys’ Home, occurred some ten to fifteen times. Since one count in the indictment can refer to one offence only, the Crown will ultimately have to select which of the alleged acts of indecency is to be the subject of arraignment and plea, in respect of which the jury will need to be satisfied beyond reasonable doubt before it convicts. Without such particularisation, it is clear that the applicant cannot plead to the indictment. This issue was not raised before his Honour, so far as I can see. Certainly, his Honour did not advert to it. However, the fact that the Crown must identify the particular indecent act which is alleged against the applicant focuses attention on the problem raised by the alleged shortcomings in the applicant’s memory of events that occurred so long ago.
It was submitted that the great delay between the dates upon which it is alleged the offences (whatever they were) allegedly occurred and the applicant’s trial has resulted in such prejudice that a fair trial cannot be conducted. This prejudice falls into three main classes. The first concerns the unavailability of numerous potential witnesses who are dead, demented or unable to be identified. Related to this issue, of course, is the undoubted fact that such of these witnesses who might have been able to give relevant evidence at one time might very well now not be able to do so for failure of recollection caused simply by the lapse of time and ordinary human fragility. A lengthy list of Marist Brothers who were on the staff of the Home at the relevant time together with the names of various other persons who worked there in various capacities, was supplied to Maguire DCJ. His Honour accepted that most of these potential witnesses were dead, mentally incapacitated or unable to be located. Of course, any properly conducted police investigation should have thrown up the names of possibly material witnesses and attempts should have been made to locate them in light of the possibility that relevant evidence material to the issues in the case might have been discovered. The mere fact, if it occurred, that this evidence might assist the defence of course, should have been irrelevant. The statements of both complainants in this case are noteworthy for the omission of any mention of staff members or friends with whom, it seems reasonable to suppose, they had communications of greater or lesser intimacy. So far as the Crown case is concerned, it is for all practical purposes entirely focused upon the evidence of the complainants, lacking any supporting evidence, let alone corroboration.

In cases of this kind, where allegations are made and charges brought after such a lengthy delay, the investigating police have the duty, in my view, to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. It is not appropriate to leave this investigation to the defence or, of course, to the complainants. Although in a sense, therefore, it is for the applicant to establish such prejudice as would justify a stay of proceedings, this should be in the context of a full and adequate investigation by the prosecuting authorities which provides a context that enables the court to evaluate in a sensible way the extent of the prejudice affecting the accused. In light of the material tendered in the District Court in this case, it is impossible to avoid the conclusion either that little more has been done than the reduction of the complainants’ allegations to a statement in the conventional form or that there are no witnesses now available and able to provide relevant and significant evidence.
Mr Merry said that, in 1963, he made a complaint to his mother concerning the applicant’s behaviour and that, nevertheless, she did nothing. I assume that this witness is, for one reason or another, unavailable. The complainant also said that, after this, he did not make any complaint until 1991 when he did so to his then partner. Conventionally, a statement would be obtained of a complaint made in these circumstances from the witness concerned. Whether this has been done does not appear. It may be significant that Mr Merry says that he made this complaint following his suffering what he described as a nervous breakdown at about this time. He said that he had told a couple of close friends but they were not identified and what he said is uncertain. So far as Mr Hurst is concerned, he said that, following the last assault, he told two of his friends about them and, a few days later, they ran away together. One of those friends was located by police and remembered his running away with the complainant and another from the home but said that Hurst did not tell him of any sexual assault by the applicant. The boys were returned into the custody of a Brother Sixtus (who is not otherwise identified) to whom it is possible that something relevant was said. No statement by this person was tendered below. Presumably someone in a responsible position explored the reasons for the boys' illicit departure. However, there was no evidence before his Honour about this matter either. If this information was available, it should have been tendered by the Crown. It was said by Mr Hurst that, after they were returned to the home, they ran away again and were found by police. He said that he told the police why he had run away but they did not believe him. It seems reasonable to suppose that such records as might have been made of this complaint are no longer available.
(In the quotations that follow, most of the citations have been excised.) In Jago v District Court of New South Wales & Others 168 CLR 23 Mason CJ said (at 30-1) -
“In essence the power to prevent an abuse of process [in the context of a criminal trial] is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.
…
“The continuation of processes which will culminate in an unfair trial can be seen as a ‘misuse of the Court process’ which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
“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.”
His Honour went on to say (at 33) -
“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial...At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused...In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare...To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial ‘of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences’: Barton v The Queen (1980) 147 CLR 75, at p 111, per Wilson J. 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’: R v Clarkson [1987] VR 962, at p 973.
Brennan J pointed out that the administration of criminal justice often encounters obstacles in the way of a fair trial, citing as examples, adverse publicity or the death or unavailability of a witness. His Honour stated, without qualification, that such obstacles do not cause the proceedings to be permanently stayed (168 CLR at 47).
Leaving aside those cases where the process of the court is put in motion for an inappropriate or improper purpose, Brennan J was of the view that unfairness occasioned by circumstances outside the court’s control could not justify a stay unless it be said that an accused person’s liability to conviction is discharged by such unfairness. However, his Honour envisaged the elimination or virtual elimination of unfairness by the flexible use of the power to control procedure and by the giving of forthright directions to a jury: 168 CLR at 48-9. It seems clear that his Honour had in mind that, in an appropriate case, it might be necessary for a judge virtually to direct a jury to acquit. With respect, it appears, however, that the other justices of the Court did not express quite the same degree of confidence as Brennan J in the ability of trial procedures to eliminate all significant unfairness. Deane J said (168 CLR at 57) -
“Once a court is seised of criminal proceedings, it has control of them. In the absence of applicable express statutory provision, that control includes the power - either inherent or implied - to ensure that the court's process is not abused by the proceedings being made an instrument of unfair oppression...The accused in such proceedings is entitled to invoke that power if he is being subjected to unreasonable delay in bringing on the trial. The appropriate relief in such a case will vary according to the circumstances. It may be an order that the matter be adjourned for a period within which the prosecution is required to supply particulars and become ready for trial. If the accused is in custody, it may be an order that he be released on bail. It may be an order that the trial be brought on for hearing. There could be circumstances in which the effect of unreasonable delay is that any subsequent trial of the accused will necessarily be an unfair one. In such a case, an order that the trial be brought on would be inadequate and inappropriate.
“The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law.
“[At 61] It is not practicable to seek to precisely identify in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (e.g. an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.”
I interpolate that, in the circumstances here, the complainants' evidence does not exhibit any significant vagueness and uncertainty of memory, except as to dates.

Gaudron J also emphasised the wide powers available to a trial court to control criminal proceedings including the power to reject evidence and said (168 CLR at 77) that the exercise of such powers -
“...will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.”
In Longman v The Queen (1989) 168 CLR 79 the High Court needed to consider the adequacy of directions to a jury on the issue of delay where the appellant was charged with several counts of indecent assault, where the complaint to the police was made twenty-five years after the first alleged incident and twenty-one years after the second. The appellant was interviewed in the following month and in due course (and without further undue delay) was tried and convicted. Brennan, Dawson and Toohey JJ said (at 91) -
“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...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 20 years that opportunity was gone and the applicant's [sic] 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 of New South Wales (1989) 168 CLR 23...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 20 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.”
The court did not consider the added complication of missing witnesses or other absent evidence, although McHugh J called attention to the particular problems arising out of childhood memories being recounted many years after the recollected events. His Honour pointed to the additional complicating factor constituted by the complainant’s evidence that, whilst she did not hate the appellant, “I do hate what he’s done and the problems its caused in my life” and commented that there was a need “ to examine carefully whether the complainant’s honest recollection of events concerning the applicant was not distorted by this hatred” (168 CLR 107-8). (In the case this Court is considering, Mr Merry, not surprisingly, has expressed in passionate terms his intense hatred of the applicant. There was also evidence suggesting that the applicant was disliked for excessive discipline.) McHugh J added the following -
“To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.
In Crampton v The Queen [2000] HCA 60 (23 November 2000), Gaudron, Gummow and Callinan JJ made the point (at para [45]) -
“The trial judge should have instructed the jury that the appellant was, by reason of the very great delay, unable adequately to test and meet the evidence of the complainant. Her Honour should not have offered the qualification that she did in relation to the remarks she did make about the delay. An accused's defence will frequently be an outright denial of the allegations. That is not a reason for disparaging the relevance and importance of a timely opportunity to test the evidence of a complainant, to locate other witnesses, and to try to recollect precisely what the accused was doing on the occasion in question. In short, the denial to an accused of the forensic weapons that reasonable contemporaneity provides, constitutes a significant disadvantage which a judge must recognise and to which an unmistakable and firm voice must be given by appropriate directions. Almost all of the passage of the majority in Longman to which we have referred [set out above] (with appropriate adaptations to the circumstances of this case, including that because of the passage of so many years, it would be dangerous to convict on the complainant's evidence alone without the closest scrutiny of the complainant's evidence), should have been put to the jury.”
Kirby J set out in greater detail the prejudice suffered by the appellant which should have been brought to the attention of the jury as an emphatic warning. Some of these considerations arise in this case and, accordingly, I set out this passage from his Honour’s judgment below. It is not necessary to set out in more detail the facts of the case, except to say that the allegations essentially were that the appellant had masturbated in the presence of two students in a storeroom next to a classroom.
“The warning required by Longman must be, in the words of the joint reasons in this case, "unmistakable and firm”. It must be related to the evidence and derived from forensic experience. The need for such a warning is demonstrated by the facts of a case such as the present. In practical terms, after 20 years, the appellant's defence could never rise much above a mere denial and protest of innocence. He had lost the chance of obtaining effective evidence from other children who were in the class at the time of the alleged offence concerning his alleged conduct. He had lost the chance of procuring effective evidence from other teachers said to have been coming and going near the class at times relevant to the events alleged. He had lost the chance of resolving, with certainty, the conflict of evidence about the nature and appearance, 20 years earlier, of locations relevant to the charges against him. He had lost the opportunity to collect forensic scientific evidence, such as was available in 1978, concerning the presence (or absence) of semen on the floor of the storeroom. He had lost the opportunity to respond effectively, by the testimony of storekeepers, to evidence that he had purchased lollies and other goods to favour the first complainant.”
As was said in R v George Adler (unreported, NSWCCA 11 June 1992) by Gleeson CJ (with whom the other members of the Court agreed) -
“The fact that a witness who is potentially able to corroborate an accused is, for one reason or another, such as death, disappearance or disability, unavailable at trial, does not normally produce the result that the accused cannot obtain a fair trial...”
It is important to note, however, that even so, his Honour went on to consider the possible significance of the evidence potentially available from the missing witness upon the assumption, clearly enough, that this factor may have been such, in the particular circumstances of the case, as to take it out of the “normal” category. This question has been considered in other cases: R v Anthony Richard Goldberg (unreported, NSWCCA 23 February 1993); R v Helmling (unreported, NSWCCA 11 November 1993; R v McCarthy (unreported, NSWCCA 12 August 1994).
As was observed by Hunt CJ at CL in R v Tolmie (unreported, NSWCCA 7 December 1994), “it was known [in the cases cited above] what evidence could be given by the missing witness” but, even so, a permanent stay was not granted. However, in all those cases an assessment was made of the possible significance of the evidence said to be unavailable. In Tolmie, as Hunt CJ at CL pointed out, it was not possible to assess the prejudice that the accused might have suffered as a result of the missing evidence since nothing was known of what evidence, if any, the two unavailable witnesses could have given. This may be contrasted with the circumstances in R v Stringer [2000] NSWCCA 293 (10 August 2000) where it was held that missing records capable of determining the guilt or otherwise of the accused was evidence of such significance that this Court found no error in the conclusion of the District Court that a jury could not be adequately instructed so as to avoid unfairness in the conduct of the trial. In the circumstances here, it must, I think, be accepted that there is at the very least a reasonable possibility that witnesses other than those which I have identified and who were at the Home, whether as pupils or staff, would be capable of giving relevant evidence and it is reasonably possible that such evidence might, to a greater or lesser extent, assist the applicant. In evaluating this question it is important that there be no presumption that the complainants are either truthful or reliable, although it is their evidence which presents the starting point for a consideration of the issue of prejudice. The existence of relevant evidence from other sources is made more likely by the circumstance that the allegations cover a lengthy period of time in an institution populated, temporarily or permanently, by a significant group of persons with whom the complainants communicated on a frequent basis and whose responsibilities in part included supervision of their welfare. At the same time, whether, in fact, any significant relevant evidence can be given and, further, whether that evidence would assist the defence, is necessarily speculative. There is also something in the argument that the absence in the Crown case of any admissible supporting material, in circumstances where, if the complainants’ accounts be truthful, one would expect it to be present, significantly weakens the prosecution case. If the trial were to proceed, this would need to be brought to the jury’s attention in emphatic terms and the tendency to explain the problem away by adverting to the lapse of time warned against. So far as the complainants’ accounts are concerned, however, the alleged offences occurred (not surprisingly) in circumstances where no eye witnesses were present. Considering that the boys were in a communal dormitory, however, a significant number of potential witnesses must have existed. The delay in this case, however, is so extreme that I have difficulty, for myself, in constructing a direction which would sufficiently make clear to the jury the grave difficulties imposed by the circumstances on both the prosecution and the defence cases. Both classes of difficulty, of course, must be regarded as adverse to conviction.
The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant’s ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague. The mere fact that the applicant remembered what University he went to, when he started teaching, what he taught at Westmead and other such matters would not justify the inference that his recollection of contextual facts was likely (as distinct from possibly) to be good. Indeed, it seems to me to be an affront to common sense and experience to suggest it. Simple forgetting, mistakes, confusion, confabulation are obviously likely in all of us and all the more dangerous in a trial context because the person almost certainly will not know when any one or more of the last three have occurred. The mere fact that this might be no more a problem for the applicant than his contemporaries does not make it any the less seriously prejudicial.
The third factor is not discussed in the authorities to which I have referred. This arises out of the psychological, psychiatric and medical examinations of the applicant. In my view, this material is of considerable significance in determining whether the court below made a relevant error in declining to grant a stay and, if so, whether this Court should do so.
On 8 June 1999 the applicant was neuro-psychologically assessed by Dr Pauline Langeluddecke on behalf of the prosecution. Dr Langeluddecke criticised Dr Gilandis’s reports in a number of respects, some of which do not seem to me to be significant. She noted that Dr Gilandas had not administered tests conventionally applied in medico-legal assessments to screen for malingering. Dr Langeluddecke disagreed with several of Dr Gilandis’s conclusions, notably what she thought might have been an overestimation of the applicant’s premorbid IQ. She also considered that the later demonstration of short term memory deficits was so extreme as to be inconsistent with the applicant’s capacity to live independently (which he plainly could do) and thought that this suggested the findings as reported were invalid. The obvious difficulty with this line of reasoning is that Dr Gilandis had not suggested that the demonstrated defects were typical or chronic and it is clear that temporary bouts of severe anxiety or depression could lead to short term, but substantial, memory defects. Despite Dr Langeluddecke’s evident suspicion of malingering, it is apparent (and she accepted) that the applicant did not demonstrate this behaviour during his consultation with her, although he had an obvious motive for so doing. So far as his current intellectual functioning was concerned, her results were similar to those obtained by Dr Gilandis but, as I have already said, Dr Langeluddecke did not think that this represented any decline in his general level of intellectual functioning from earlier times. Dr Langeluddecke considered that his immediate verbal recall was towards the upper end of the average range for his age, that information committed to immediate verbal memory was extremely well retained over time, that his ability to learn verbal information through repetition and rehearsal was within the high average range and that recently learned information was well retained over time and resistant to the effects of competing information. She concluded that there was no evidence of a specific deficit in relation to immediate short term memory and capacity for new learning and considered that he could be expected to have accurate recall of events around the time of the alleged sexual offences. Quite was is meant by this last opinion is uncertain but I think it refers only to particular events of significance that occurred around those times. It is very far from suggesting that he might have particular memory of facts (if they existed) as alleged in the prosecution case or what I have called contextual facts. Dr Langeluddecke concluded her report in the following way -
“[The applicant’s] demeanour at assessment and his responses on psychological symptom check lists suggest a degree of anxiety and depression at the present time. This is to be expected given the stress of his impending court case. His anxiety and depression are at levels which can be expected to mildly compromise his attentional capacity, and in turn affect his recent memory. However, his ability to recall information from longer term memory is unlikely to be affected. I am of the opinion that the effects of anxiety and depression on [the applicant’s] cognitive functioning are insufficient to compromise his competence to stand trial.”
It is clear that Dr Langeluddecke’s focus was the applicant’s fitness to stand trial rather than the possibility that he might be handicapped to one or other degree in respect of giving evidence. On the other hand, her tests suggest that, if there was such a disability, it was no more than mild.
The applicant was also examined by Dr Bruce Westmore, a forensic psychiatrist. It is clear that Dr Westmore’s assessment was primarily concerned with the issue of the applicant’s fitness for trial. He considered that, accepting Dr Gilandis’s results, there was some suggestion of organic brain damage but concluded that there was no evidence on clinical presentation to indicate that this had so compromised his capacity as to mean that he was not fit to be tried. However, the doctor concluded that the applicant had an adjustment disorder with features of anxiety and depression and was concerned with the possible effects of protracted or extreme psychological distress on his physical well-being, in particular his cardiac status which, as I have mentioned, was compromised. In a later report, Dr Westmore accepted that depressive components in the applicant’s presentation might, in part, account for some of the adverse cognitive changes noted by Dr John Roberts, a psychiatrist consulted by the applicant. I note, because it provides a significant factor in the forensic context for this application, that the applicant had told Dr Westmore that he intended to plead not guilty to the charges, stating that “I didn’t do it”.
In further tests administered by Dr Gilandis in May 1999, the applicant’s test scores were virtually identical to those previously obtained by him and which, in his opinion, confirmed his earlier assessment. Dr Brian Richardson, the applicant’s general practitioner since November 1998, reported that, in a number of consultations, he had noted the applicant’s memory failed him at times but that, during a consultation on 29 May 1999 (a few days after Dr Gilandis’s second assessment), he complained of confusion whilst attending the assessment and his confusion was more pronounced at the time he was seen by Dr Richardson. Dr Roberts, a psychiatrist, saw the applicant on 9 June 1999. Dr Roberts accepted the reliability of Dr Gilandis’ test scores since they coincided with his own clinical impressions. He noted that the applicant was unable to remember any personal interaction between himself and the complainants. A CT scan ordered by Dr Roberts indicated the presence of mild cerebral and cerebellar atrophy, namely organic brain disease, which the doctor considered was evidence of organic change that would provide a definite basis of a medical nature to support an assertion by the applicant of problems with his memory. The opinion of Dr Stern, the radiologist, that the CT scan showed mild cerebral and cerebellar atrophic changes, was sought to be controverted by the Crown, essentially upon the basis that it is normal that persons of the applicant’s age might suffer such atrophy with no concomitant compromise of memory function. However, it was later made clear that the radiologist’s opinion providing the basis for the finding of organic change was that the atrophy he noted was more than that which might be normally expected in a person such as the applicant. Dr Roberts notes what seems to me to be the important point that the fact that the applicant had sought to refresh his memory by referring to school records, such as the year book, and discussing matters with certain of his colleagues, could give rise to the difficulty that this recently acquired information might well be confused with an apparent recollection of past events. To speak of this, as the Crown Prosecutor did in this Court, as being an effective refreshment of memory, is tendentious, quite apart from comprising but a tiny part of the contextual facts.

Dr Roberts considered that the CT scan provided unarguable evidence of cerebral degeneration, clearly indicated by the presence of atrophy of the cerebrum and cerebellar areas and by the presence of an infarct which would be consistent with underlying vascular disease. He considered that this finding provided a clinical foundation that was supportive of the applicant’s expressed failure to recollect matters of fact in relation to the charges against him. Dr Roberts noted that the CT results provided an “organic medical explanation” over and above normal forgetfulness. Having regard to Dr Stern’s clarification of his CT scan report, the assumptions upon which both Dr Langeluddecke and Dr Westmore (who relied on the radiologist's report) proceeded in discounting the significance of those results were mistaken. I consider, however, that the cause of psychological impairment for relevant purposes is not of great significance. The real question is whether there are psychological or other impairments suffered by the applicant which, together with the other circumstances of the case, render a trial on the proposed indictments, unfair.
In August 1999, following an episode of prolonged chest pain, the applicant underwent coronary artery bypass surgery. As Dr Fitzpatrick, Director of the Cardiology Department of the Nepean Hospital, Penrith, observed, this surgery carried with it the risk that some memory impairment might occur. Following surgery, the applicant’s recovery was slow. Dr Fitzpatrick noted that he was more depressed and reported some short term memory loss. The applicant was seen again in February 2000 by Dr Roberts, who noted that he gave the impression of being very depressed and the doctor prescribed anti-depressive medication in light of the expression by the applicant of suicidal thoughts. Dr Roberts pointed out that depression of itself, even in the absence of underlying organic cerebral disease, may produce an impairment in intellectual function and, as I understand it, also with memory. These opinions are not controversial. Dr Roberts also pointed out that memory is not a faculty that observes previously collected information like a film but rather it is a constructive faculty. The consequence is that, having regard to the very long lapse of time between the present and the alleged events, Dr Roberts thought that, from a purely psychiatric viewpoint, he would find it very difficult to understand how reliance could be placed on any statements made by the applicant in response to questions about the matters in issue.
In March 2000, Dr Gilandis again assessed the applicant’s psychological and intellectual state. He noted results which were virtually identical to those of previous testing. I interpolate here that I find it very difficult to accept the suggestion that these scores may have been skewed by malingering on the applicant’s part, since they remained consistent over three assessments performed at very lengthy intervals. Dr Gilandis noted that there was a significant verbal/non-verbal discrepancy which was, he thought, diagnostic of brain damage having regard to the overall results. He noted that the test for depression demonstrated that it was severe. Dr Gilandis’s opinion was that the applicant had medically documented brain damage, was clinically depressed and had severe physical illness (heart disease) although, of course, he had recovered well from bypass surgery. Dr Gilandis noted that the applicant had “the core criteria to make him an unreliable witness under the best of circumstances, let alone re: events that allegedly occurred years ago”. He concluded that it was not “possible to validly cross-examine Mr Littler on events that may have occurred decades ago, especially since he is now 73 years old, has brain damage, is clinically depressed and has cardio-vascular disease."
On 13 September 2000 Dr Langeluddecke provided to the Director of Public Prosecutions a report in which she addressed the March report of Dr Gilandis and the February report of Dr Roberts. She noted what seemed to her to be significant inconsistencies in the results and thought that the findings rather suggested that “psychological factors are playing a major role in any recent memory deficits which Mr Littler may demonstrate on testing.” Dr Langeluddecke concluded her report as follows -
“On the basis of the information contained in the further report, I note that there is evidence of mild cerebral and cerebellar atrophy on CT scanning. I would expect a mild degree of cognitive impairment in relation to this. However, in the light of the neuro-psychological findings I do not consider this is sufficient to compromise Mr Littler's ability to stand trial. Of greater significance is the fact that Mr Littler is severely depressed, moderately anxious and in poor physical health. I would expect Mr Littler to find the ordeal of standing trial and in particular being cross-examined, extremely distressing. Accordingly, his ability to maintain his attention over an extended period of time, and in turn his capacity to reliably access information from both recent and longer term memory and to succinctly convey relevant information is likely to be very poor under these stressful conditions.”
It seems to me that the opinion expressed in the last two sentences of this report is, in substance or, at least, in effect, the same as that propounded by the experts called by the defence, so far as the applicant’s ability to give an account of himself in the trial context is concerned. In her evidence, Dr Langeluddecke qualified this conclusion by stating that “it probably is more accurate for me to say that he would find it difficult…he would get very anxious in the Court and possibly very emotional and the Court would have to be tolerant with him”. It is obvious that this situation would make it difficult for concentration and communication and testing a jury’s tolerance is certainly a handicap for any accused. Dr Westmore’s report of 21 June 2000 focused again on the issue of the applicant’s fitness for trial, and on what he described as the applicant’s “natural forgetfulness” and what I take to be his underlying memory problems which, he concluded, are not related to the changes identified on the CT scan or to his depression. Dr Westmore’s view can be summed up, I think, in the opinion given in evidence before Maguire J that “there are no organic causes…looking at his autobiographical history and the detail with which he can provide that in a general sense, to indicate that he is unfit”. As to Dr Langeluddecke’s test results showing a difference of 19 points between the performance and the verbal scores (which she considered not to be clinically significant), Dr Westmore said “that level of difference is reflective of organic brain disease”, though “20 points is the cut-off point”. Dr Westmore agreed that, so far as the effect of the applicant’s depression upon his memory functioning was concerned, he would defer to Dr Roberts, as the applicant’s treating psychiatrist. As to the CT scan, as I have mentioned, it seems clear that there was a misunderstanding, since clarified, of what Dr Stern intended to convey by his report. More generally, Dr Westmore considered that the applicant had an adjustment disorder with features of anxiety and depression.What I might term, perhaps too concisely, as Dr Langeluddecke’s conclusion as to episodic memory and concentration disability was not considered by Dr Westmore.
Although the Crown referred to the report of Dr Roberts as at 12 July 2000 that anti-depressive medication taken by the applicant appeared to be controlling his depression satisfactorily, this was plainly not intended to be a qualification of the problems earlier identified by the doctor and does not, to my mind, reflect on either the opinions expressed by him and Dr Gilandis or that of Dr Langeluddecke.
In the result, therefore, the medical evidence dealing with the difficulties faced by the applicant in giving evidence itself is all one way, except as to whether the demonstrated brain damage was a contributing factor. The ability to give evidence coherently and fluently, without substantial hesitation and qualifications, to remember the evidence previously given in the trial by other witnesses as well as one’s own testimony, quickly understand questions asked both in examination in chief and cross examination and formulate responsive and consistent answers are all vital to an accused. In all of this, concentration and short term memory are crucial. Juries are quick to see hesitation as playing for time, qualifications as lack of candour, and inconsistencies as proof of fabrication. It is very difficult to dispel the negative impression these factors may create, entirely unfairly though this might be. This will not necessarily mean that the trial will be unfair, let alone that it should be stayed, but, where it results from or is connected with a substantial delay not due to the accused, it must be considered, together with the other substantial prejudicial circumstances to which I have referred, in determining whether a stay ought be granted. These problems are not merely cumulative, but each multiplies the significance of the others.
His Honour dealt with the evidence of loss of memory but identified the relevant contention on the applicant’s behalf as being that he had significantly deficient long term memory . His Honour concluded -
“Whilst he may be handicapped by forgetfulness, I am not persuaded that any lack of memory is greater than it would have been in any other person of his age and that any memory problems have not been significantly affected by depression, anxiety, any medical condition or cognitive defect.”
In my respectful view, this finding of his Honour erred in two significant respects. The first is the assumption that the only material memory deficit concerned long term memory. It is clear from the evidence to which I have referred above that a most significant matter, as to which there was no real dispute or significant controversy, was the substantial disability suffered by the applicant in respect of his psychological, psychiatric and physical problems in conducting a trial, a central feature of which might well be the necessity for him to give evidence and undergo cross-examination. The only Crown witness to deal with this issue expressed her concerns about the applicant's problems in emphatic language. A second significant error made by his Honour, in my respectful opinion, was his view that the relevant issue was whether the extent of the applicant’s memory problems was no greater than that which might have been suffered by any other person in the applicant’s position. I consider that, in the end, the significance of any substantial difficulty likely to have an impact on the ability of an accused to give evidence must be evaluated irrespective of causes. His Honour’s conclusion that, because the applicant had no greater problems than any other person of his age and circumstances, the trial would not be unfair is, with respect, a non sequitur.
The learned trial judge accepted that the applicant’s cardiac condition, depression and distress would be greater than is suffered by many persons who face trial under physical and mental difficulties but concluded that this was neither unfair nor oppressive to him. However, this was not a separate issue unrelated to the identified problems caused by the unusual, indeed, unique delay in prosecuting him. His Honour stated -
“I recognize the actual and potential prejudice to the accused by reason, inter alia, of the unavailability of potential witnesses, the difficulties in remembering events of 40 years ago, his long standing and current health problems, the stress involved in him facing a trial and the substantial delay between the alleged events and trial.
“As I have already indicated, the trial Judge would give appropriate directions to the Jury identifying the practical difficulties and handicaps which the delay may cause the applicant. No doubt further directions will be given as to the significance to be placed on the lack of complaint.”
With respect to his Honour, the “difficulties and handicaps” faced by the applicant in this case went much further than the merely “practical”. Nor will directions confined to the consequences of delay be adequate. So far as lack of complaint is concerned, the evidence of the complainants is that they told, in one case, the police and, in the other, a parent. The difficulty is that, having regard to the delay in making the complaints that led to the applicant’s being charged, neither verification nor refutation is now possible.
His Honour also placed some weight upon the fact that the applicant did not give evidence of his version of asserted memory deficiencies. However, the fundamental source of information about this aspect is, in the circumstances of this case, the highly specialised and extensive psychological assessments made by Dr Gilandis and Dr Langeluddecke, informed by the other expert evidence. With the greatest respect for his Honour's undoubted considerable experience, a lay person's common sense could not reliably provide a fair or reliable assessment of the extent and aetiology of memory and concentration deficits, let alone a conclusion about clinical depression. The evidence would presumably have concentrated on what may have been perceived to be the applicant's memory of events contemporaneous with those alleged in the indictment. There may then have been cross-examination which could hardly have avoided the allegations themselves. In light of Dr Langeluddecke's concluding opinion, that evidence may well have itself been affected by the problems which she identified but which the learned trial Judge may well not have been in a position to assess fairly. Further expert evidence may well have been presented concerning the character and significance of the evidence given by the applicant before his Honour. The court room is not a place and the rules of evidence, let alone the conduct of cross-examination, is not an appropriate mode, for assessment of the issues sought to be resolved by this process. The failure of the applicant to give evidence could not, it seems to me, properly lead to a conclusion different to that which I have said to be, in substance, uncontroversial.
If the psychological evidence were to be led at trial, as it well might need to be to give the jury a basis for fairly assessing the applicant’s evidence, if he gave any, it would add greatly to the complexity and difficulty of the issues to be considered by the jury, especially as it deals with scientific opinions in an area where lay experience and common sense are unlikely to be good guides. The differences between the expert witnesses emphasise the difficulties of assessment. These problems, which I consider to be real, were not adverted to by the learned trial judge. With respect, it seems to me that they were overlooked by his Honour when considering the character of the directions that might need to be given to the jury to ensure a fair trial.

Accordingly, I consider that his Honour erred in his conclusion as to the significance of the psychological, psychiatric and health factors in the case. These matters were of central importance to the conclusion that his Honour ultimately drew to refuse a stay of further proceedings. I am therefore of the view that it is necessary for this Court to consider for itself, in light of the principles which I have set out above, whether, although it is exceptional, a permanent stay should be granted.
It is clear that the personal situation (to use a general description) of the applicant is, to a very significant degree, the result of his age and thus comes to be considered as a consequence of the very extensive, indeed unprecedented, delay between the alleged events and his proposed trial. If the trial were to proceed, the jury would need to take into account not only those matters to which I have already adverted in my discussion of the authorities on the issue of delay but also to the significance of the psychological condition of the applicant. That condition would, of course, remain relevant even if he did not give evidence, since an assessment of the significance of delay and the difficulties thereby caused to an accused person, must necessarily take into account any adverse consequences to his ability to respond to the allegations. In a practical sense, I cannot see how this evidence could be adduced in a way that did not deflect the jury from the central issues in the case and add inappropriate complexity to the assessment of evidence which would itself not be an easy task. In the end, I do not see how directions could be cast in terms adequate to deal with the difficulties in this case resulting from delay, the absence of relevant evidence, the possibility of the loss of potential witnesses and the health and psychological condition of the applicant.
In Jago, Deane J said (168 CLR at 57) -
“The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience.”
The applicant tendered in this Court, without objection, an affidavit in which he set out in some detail the matters which, he claimed, he could not remember. For myself, I consider that the state of his memory had already been sufficiently exposed in the examinations which he undertook, including - and I think this to be most significant - two examinations with two prosecution experts. Both of those experts said, in effect, that they detected no malingering on his part. Accepting at its highest what they said about the applicant’s long term memory, namely, that they could not detect any significant disability, in my opinion it is not (contrary to the Crown’s submission in this Court), in substance contradictory of the specific failures alleged in the affidavit.
Applying the principles to which I have referred above, I consider that the applicant cannot have a fair trial in the present circumstances. Accordingly, I propose that leave to appeal be granted, the appeal upheld and further proceedings on the indictments be permanently stayed.
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LAST UPDATED: 05/06/2001

[2001] NSWCCA 173

4 June 2001