R v MARSHALL
[2011] SADC 132
•31 August 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v MARSHALL
[2011] SADC 132
Ruling and Judgment of His Honour Judge Nicholson
31 August 2011
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Permanent stay of criminal proceedings sought by applicant on the basis that their continuation, in the circumstances, would give rise to an abuse of process.
Held: Stay refused.
Criminal Law Consolidation Act 1935 Part 8A, s 269J, s 269J(2), s 269M(5), s 269H, s 269H(b) and (c), s 269O; Crimes Act 1914 s 20B; Evidence Act 1929 s 34CB; District Court (Criminal and Miscellaneous) Rules 1992 Rule 8, referred to.
R v Liddy [2010] SADC 80; Walton v Gardiner (1993) 177 CLR 378; Barton v R (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509; R v Ulman-Naruniec [2003] SASC 437; R v PNJ (No. 2) (2007) 99 SASR 1; R v Glynn (2002) 82 SASR 426; Subramaniam v R (2004) 211 ALR 1, [2004] HCA 51; R v Abdulla (2005) 93 SASR 208; Question of Law Reserved (No. 1 of 1997) (1997) 70 SASR 251; R v Telford (2004) 89 SASR 352; R v WRC [2003] NSWCCA 273; R v Sexton (2000) 77 SASR 405; R v Burns (No. 2) (1999) 154 FLR 190; R v Hakim (1989) 41 A Crim R 372; R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29, considered.
R v MARSHALL
[2011] SADC 132Introduction
On 21 July 2006 the applicant was found unfit to stand trial in this court, in accordance with the provisions of Part 8A of the Criminal Law Consolidation Act 1935 (“CLCA”), with respect to a number of offences alleged to have been committed against the complainant GU. Two applications to stay the ensuing trial of the objective elements of these alleged offences were heard and refused following which a trial of the objective elements commenced on 7 September 2007. On 1 October 2007 his Honour Judge Clayton delivered Reasons for Verdict in finding the objective elements of one count of buggery and one count of procuring an act of buggery established beyond reasonable doubt. However, his Honour found that the objective elements of three other counts of buggery and two counts of indecent assault had not been established. An order for supervision was made and on 18 December 2007, the applicant was released on licence with a limiting term of 6 years and 6 months commencing on that date.
By information dated 27 July 2009, filed in this court, the applicant has been charged with other alleged offending namely, four counts of buggery of the complainant DQ, one count of indecent assault and one count of buggery of the complainant DJ, one count of indecent assault and five counts of buggery of the complainant AF, and one count of rape of, or in the alternative unlawful sexual intercourse with, the complainant IC. As far as the complainant’s DR, DJ and AF are concerned the charged offences in each case are said to be representative of a lengthy course of conduct. All of the alleged offences are said to have taken place between 1971 and 1976, some 35 to 40 years ago.
By notice filed pursuant to Rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992, solicitors representing the applicant have applied for an order that the trial of the objective facts in relation to the information dated 27 July 2009 be permanently stayed.
At all times throughout the conduct of the present proceedings it has been maintained on behalf of the applicant that his lack of fitness to stand trial, as found by his Honour Judge Clayton on 21 July 2006, albeit only with respect to the proceedings involving the complainant GU, has not changed and that the applicant is similarly unfit to stand trial in the present proceedings. The Director of Public Prosecutions has conceded that the applicant is unfit to stand trial. As at the time of hearing submissions, no formal investigation into the applicant’s mental fitness to stand trial with respect to these proceedings, in accordance with the provisions of s 269J of the CLCA, had taken place. However, senior counsel for the applicant and counsel for the Director advised the court during submissions that the only live issue to come before the court was whether or not the Crown could established beyond reasonable doubt the commission by the applicant of the objective elements of each of the offences alleged in the information of 27 July 2009. Further, counsel for the applicant expressed in open court an election that any such enquiry into the objective elements was to be conducted before a judge sitting alone, that is, without a jury.
Accordingly, and recognising the reality of the situation, the application for a stay was presented in this context and with the expectation that the proceeding to be stayed was simply the proposed trial of the objective elements.[1]
[1] The transcript of the hearing at page 5 line 7 is in error. The reference to “part 8A application” should be and was a reference to “section 8 application”. There was no formal Part 8A application before the court.
In any event, and insofar as is necessary, I have understood the concessions made by both the applicant’s counsel and counsel for the Director on this issue to comprise an understanding by them that the court might, in it’s discretion, dispense with an investigation into the applicant’s fitness to stand trial and proceed to record a finding that the applicant is mentally unfit to stand trial, in accordance with the discretion available to the court pursuant to s 269M(5) of the CLCA.
Section 269H of the CLCA provides as follows:
A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is –
(a) unable to understand or to respond rationally to, the charge or the allegations on which the charge is based; or
(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.
On 21 July 2006 his Honour Judge Clayton found that the applicant’s mental processes were so distorted (sic) or impaired that he satisfied the requirements of s 269H(b) and (c). His Honour found that, on any view of the evidence before him, the applicant was suffering from cognitive impairment or dementia which was probably related to a combination of Parkinson’s disease and underlying cerebrovascular disease. His Honour found, in addition, that the applicant suffered from a number of physical ailments and was bedridden and required the assistance of a carer.
I have reviewed the medical reports provided to the court in this matter being reports by Dr Margaret Bennetts dated 26 August 2009, 20 October 2008, 21 August 2007, 14 March 2006, 13 February 2006, 12 October 2005 and 6 July 2005; by Dr R J Prowse dated 26 August 2009, 4 September 2007 and 6 February 2006; by Mr Mark Reid dated 17 February 2010 and 24 February 2006; by Mr Colin Field dated 30 June 2005 and 15 April 2005; by Dr Joanne Pieters dated 20 August 2009 and by Dr Jeffrey Seidel dated 28 December 2005. I have also had regard to a comprehensive letter from Dr Margaret Bennetts dated 4 August 2011 which purports to set out the current medical status of the applicant concerning all of his many medical complaints and problems.
The applicant’s medical problem list includes the following: advanced Parkinson’s disease first diagnosed in November 2003 following which there has been a marked increase in severity of symptoms which include, apart from the usual physical manifestations of this illness, poor memory and a confused mental state; type II diabetes mellitus which has contributed, amongst other things, to small vessel cerebrovascular disease and small cerebrovascular accidents and transischaemic attacks; ischaemic heart disease; ischaemic cerebrovascular accidents (strokes) which lead to amongst other things, vagueness; osteoarthritis in hips and spine; spondylosis; osteoporosis; hypertension; hyperlipidaemia; GORD – gastro-oesophageal reflux disease; irritable bowel disorder; insomnia; tinnitus; benign prostatic hypertrophy; iron deficiency anaemia; anxiety / depression with increasing signs of significant agoraphobia which manifests itself in an extreme fear of leaving the house even to the extent of going out into the garden; and dementia in that the applicant continues to show a decline in cognitive impairment, short term memory impairment and other changes of cognition which can be variable at times.
I accept that the applicant is effectively house bound and that he is bed bound for upwards of 70% of the time. He needs 24 hour care seven days a week. His overall medical condition has further deteriorated since the time Judge Clayton made his determination and continues to weaken with increasing pain levels, increasing frailty and increasing dependence on his carers.
On the basis of the medical material available to me and the brief submissions relevant to this point put by counsel for the applicant which were not disputed in any way by counsel for the Director, I am satisfied that the applicant’s physical and mental functioning has worsened significantly since the time that Judge Clayton made his determination of unfitness to stand trial in July 2006. I am satisfied, following my own review of the material, that the applicant remains mentally unfit to stand trial in that his mental processes are so disordered or impaired that the applicant would satisfy, at least, the requirements of subparas (b) and (c) of s 269H. Accordingly, I propose to exercise the discretion available to the court pursuant to s 269J(2) and s 269M(5) and dispense with any further investigation into the applicant’s fitness to stand trial and I do record a finding that the applicant is mentally unfit to stand trial.
Counsel for the applicant has elected, on behalf of the applicant, for trial before a judge alone with respect to the objective elements of the alleged offences. Accordingly, the application for a stay of proceedings is to be considered and determined within this context.
Outline of the applicant’s argument
In essence, the applicant maintains that the present case can be characterised as exceptional and one in which the court should exercise its power to stay proceedings in order to prevent an abuse of its processes. It is submitted that the case is exceptional by virtue of a combination of the following facts and circumstances (as set out in paragraph 22 of the applicant’s outline of argument):
(i)the long delay between the alleged offending and the hearing of the proposed trial;
(ii)the physical condition of the applicant;
(iii)the legal requirement that the trier of fact takes into account the forensic disadvantages to the accused when scrutinising the evidence;
(iv)the applicant’s memory impairment;
(v)the confluence in this case of the lengthy delay with the limitations on the trial of the objective facts;
(vi)the limitation on the ultimate disposition of the case imposed by the fact of the applicant’s mental unfitness to stand trial;
(vii)the nature of the supervision order to which the applicant is presently subject;
(viii)the stigmatisation and the public opprobrium already suffered by the applicant.
The alleged offences are said to have taken place during the period 30 November 1971 to 31 December 1976, that is, between 35 and 40 years ago. The circumstances which, on the applicant’s argument, are said to render the continuation of these proceedings an abuse of process can be distilled into the following:
(i)By virtue of the long delay between the alleged offending and trial the applicant inevitably will face forensic disadvantages in being able to effectively dispute or challenge the allegations.
(ii)This situation has been exacerbated by the fact that in the intervening period and, in a sense, as a consequence of the delay, the applicant’s capacity to defend and challenge the matters has been worsened by his increasing physical and, in particular, mental incapacities.
(iii)Some of this additional unfairness or difficulty in being able to mount a defence, facing the applicant, may have been alleviated or limited had the present proceedings been brought in a more timely fashion. In particular, the police were on notice of complaints made by the four complainants no later than June 2005 and well prior to the trial held before his Honour Judge Clayton. It was submitted, that with more diligent investigatory work by the prosecuting authorities, the matters, the subject of the present information, could have been dealt with, if not at the same time as Judge Clayton heard the GU complaints, at a time very soon thereafter.
(iv)The applicant has already been found to have committed the objective elements with respect to two offences of a nature similar to the present charges and is presently the subject of a limiting term which is highly likely to be in place at the time of the applicant’s demise. Even if this were not to be so and in any event, the applicant’s physical circumstances only will worsen. At present he is released on licence for the duration of the limiting term but subject to strict conditions including home detention conditions. The medical evidence demonstrates that the applicant will remain housebound or in a high dependency care environment, until his demise, whether or not obliged by law to do so. Further, the significant publicity surrounding the applicant’s earlier trial, the findings at that trial and the further charges brought in the present proceedings demonstrate that he has already been subject to extreme opprobrium in the eyes of the community and that his criminal activity, at least insofar as GU is concerned, has been exposed. In practical terms, the continuation of the present proceedings can achieve little and therefore lack utility.
(v)As a matter of common humanity and after having regard to the age of the applicant, his physical and mental incapacities and his very limited life expectancy, particularly where the proceedings lack utility, this case has reached a stage of “objective persecution” and this, on its own, suggests an abuse of process and that a stay is warranted.
The applicable law
I set out below, by way of direct quotation, a summary of the applicable law prepared by me for the purposes of my consideration of an application for a stay in the matter of R v Liddy[2]. This summary was prepared in the context of and applied to the situation where the application for a stay was made at a time when a trial on the merits, as in the ordinary case, was contemplated and when there had not as yet been any election for a trial by judge alone.
[2] [2010] SADC 80 at [7] – [11].
The Applicable Law
This court has power to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process. The power is either an implied power or an aspect of this court’s inherent jurisdiction to regulate its own processes.[3] The power to order a permanent stay is discretionary, to be exercised sparingly and only in exceptional or extreme cases.[4] The onus of satisfying the court of an abuse of process lies on the party alleging it and the onus is “a heavy one” to discharge.[5] However, the power to stay on grounds of an abuse of process extends to all categories and cases in which the process and procedures of the court which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness.[6] The power is not limited to cases where proceedings are instituted for an improper purpose or where there is no possibility of a fair trial.[7]
[3] Walton v Gardiner (1993) 177 CLR 378 at 392 – 393, per Mason CJ, Deane and Dawson JJ.
[4] Barton v R (1980) 147 CLR 75; Walton v Gardiner (1992-1993) 177 CLR 378 at 392; Jago v District Court of New South Wales (1989) 168 CLR 23 at 31 – 34.
[5] Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson Toohey and McHugh JJ and cases there cited.
[6] Walton v Gardiner at 392 – 393 per Mason CJ, Deane and Dawson JJ.
[7] Walton v Gardiner at 395 per Mason CJ, Deane and Dawson JJ and cases there cited.
According to the joint judgment in Walton v Gardiner:[8]
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the applicant, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.
An important public interest consideration, at least in this State, not expressly identified in the above passage, is the interest of victims and their families in having the person who has harmed them charged and prosecuted.[9]
In the present matter, the applicant submits that there are a number of factors which suggest that if a trial in this matter were to proceed, it would be accompanied by significant unfairness to the applicant. The applicant submits that each of these factors alone justifies a permanent stay but that, in any event, taken together, there is sufficient unfairness to the applicant as to overwhelm what should be characterised, in all of the circumstances, as only a limited public interest in continuing with the present prosecutions. In R v Ulman-Naruniec,[10] Bleby J,[11] after analysing the leading authorities in this area, described the balancing exercise necessarily involved, in a case such as the present, in the following terms.
It is, therefore, not the case that any perceived unfairness in a trial will result in a permanent stay. It seems that at least three of the judges of the High Court in Jago consider that there must be something so exceptional in the apprehended unfairness that it cannot be corrected by other measures open to the court and that there is a necessary balancing requirement between the apprehended unfairness on the one hand and the public interest in trying persons charged with criminal offences on the other, the latter yielding only when continuation of the prosecution will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice.
A permanent stay based on an abuse of process is a remedy of last resort; there must be no other means available to bring about a fair trial.[12]
[8] Mason CJ, Deane and Dawson JJ at 395 – 396.
[9] R v PNJ (No. 2) (2007) 99 SASR 1 at [33] per Gray J with whose reasons Duggan J agreed.
[10] [2003] SASC 437; 132 LSJS 1 at [24].
[11] With whose reasons Besanko J, in general, agreed.
[12] R v Glynn (2002) 82 SASR 426.
As I have indicated the present application arises, in effect, in the context of the proposed trial of the objective elements only following a concession and now a finding that the applicant is mentally unfit to stand trial and in the context where there has been an election that the trial of the objective elements take place before a judge sitting alone. Given this context, a number of other authorities do need to be referred to.[13]
R v Abdulla[14] concerned a deaf, mute and illiterate accused charged with serious sexual offending. He did not suffer from any mental illness but it was common ground that he was unfit to plead. The Court of Criminal Appeal, by majority,[15] held that Part 8A of the Criminal Law Consolidation Act applied and that there was no discretion to stay the proceedings at common law. The majority[16] rejected the submission that, even if the appellant fell within the terms of s269H and was not mentally fit to be tried, a stay should be granted because the appellant could not give instructions in relation to any trial of the objective elements of the offences. Besanko J said:
It seems to me that that would invariably be so and that there is no room for the operation of the doctrine of abuse of process where Parliament makes specific provision for the consequences of a particular state of affairs and there are otherwise (as in this case) no special or unusual circumstances.
[13] Again, the subsequent discussion of these authorities apart from that concerning Subramaniam v R (2004) 2011 ALR 1 [2004] HCA 51, is taken directly from my reasons concerning the application for a stay in R v Liddy [2010] SADC 80 at [41] to [43] and [45] to [50].
[14] (2005) 93 SASR 208.
[15] Duggan and Besanko JJ; Debelle J dissenting.
[16] Besanko J at [78] with whom on this issue Duggan J at [29] agreed.
Debelle J, who dissented, held that Part 8A, on its proper construction, did not apply and that the matter should be determined in accordance with the common law regulating the granting of a stay of proceedings for abuse of process.
According to Duggan J (with whose reasons Mathison and Nyland JJ agreed) in Question of Law Reserved (No. 1 of 1997),[17] Part 8A provides a code for dealing with the issues of mental competence to commit an offence and mental fitness to stand trial, although its interpretation cannot be divorced entirely from the prior common law on this topic.[18]
[17] (1997) 70 SASR 251 at 252, 258.
[18] See also R v Telford (2004) 89 SASR 352 at 364-365 per Perry J.
. . . .
The interface between the common law of abuse of process and statutory regimes dealing with fitness to plead has been considered by at least two other intermediate courts of appeal.
The New South Wales Court of Criminal Appeal in R v WRC[19] held that whilst the relevant legislation in NSW[20] contains a carefully constructed and comprehensive scheme for determining issues of fitness to be tried, it is not exclusive and does not exclude the implied jurisdiction of a superior court to control its own processes, in particular, its power to control an abuse of process.[21]
Spigelman CJ, speaking on behalf of the court, said this:[22]
Part 2 is concerned with a particular range of matters. Such matters may arise in combination with matters not within its scope, in the context of alleged abuse of the processes of a court. Nothing in Part 2 of the Act suggests, let alone states with sufficient clarity, that the Parliament intended to impinge on the implied jurisdiction of the District Court or the inherit jurisdiction of this Court, in this regard. The presumption to which I have referred is not overcome. The appellant’s contention that His Honour had no jurisdiction to make the order that he did make, on the basis that Part 2 of the Act covered the relevant field, should be rejected.
In reaching this conclusion, Spigelman CJ had regard to certain observations and findings by Gray J speaking on behalf of the Court of Criminal Appeal for this State in R Sexton.[23]
In Sexton, the Court of Criminal Appeal refused to accept the proposition that an analogous Commonwealth provision, s20B of the Crimes Act 1914, effectively ousted the operation of the common law inherent powers of the court to grant a permanent stay on the ground of existing unfitness to be tried.[24] Gray J said this.[25]
In my view, this proposition is not correct. A statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or is the matter of necessary implication. There is nothing in s20B to suggest that the inherent jurisdiction of the court to grant a permanent stay has been abrogated. The reasoning in Kesavarajah v The Queen is inconsistent with such a proposition.
His Honour went on to say:[26]
There remains for consideration, the circumstance where a stay is sought on humanitarian grounds. The ill health of an accused may, in exceptional circumstances, raise humanitarian considerations, notwithstanding that the accused has a sufficient understanding of the nature of the trial process so as to be able to make a proper defence to the charge. Where this occurs, the practice in South Australia is for the matter to be decided by a judge alone. Rules 8 and 9 of the Supreme Court Criminal Rules apply. (citations omitted)
[19] [2003] NSWCCA 273, Spigelman CJ, with whose reasons Dunford and Hidden JJ agreed.
[20] Part 2 of the Mental Health (Criminal Procedure) Act 1990.
[21] At [47] – [50].
[22] At [50].
[23] (2000) 77 SASR 405, Prior, Williams and Gray JJ.
[24] In so doing, the CCA effectively overruled this aspect of the reasoning of Olsson J in R v Burns (No. 2) (1999) 154 FLR 190 at [36].
[25] At [35].
[26] At [62].
The additional case to which reference needs to be made is the High Court decision in Subramaniam v R.[27]
[27] (2004) 211 ALR 1, [2004] HCA 51.
This case concerned a “special hearing” pursuant to relevant New South Wales legislation designed to determine whether or not the accused was unfit to be tried. During the criminal proceedings on foot the accused’s mental health deteriorated and the accused applied for a permanent stay of the criminal proceedings. That application was refused and in due course a jury returned its verdicts. The matter went on appeal to the High Court on matters arising out of the trial judge’s remarks to the jury but also on the issue of whether or not a permanent stay should have been granted at the outset. An unanimous full court[28] held that in the circumstances of the case before it the possibility of the continuing deterioration of the accused’s mental health and any potential that the trial might have for its aggravation did not provide sufficient reason for a grant of a permanent stay.
[28] Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ.
The court said this[29]
A relevant test that has been applied and which we would adopt, is whether, in light of the [accused’s] deteriorating condition, it “would be out of accord with common humanity” to have allowed the matter, which was, it must be emphasised, a special hearing, to proceed.[30]
The possibility of the continuing deterioration of the [accused’s] mental health and any potential that the trial might have for its aggravation did not therefore, in the circumstances of this case, provide sufficient reason for the grant of a permanent stay. The primary judge has not been shown to have failed to weigh and give effect to relevant factors of the kind to which Mason CJ, Deane and Dawson JJ referred to in Walton:[31]
a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
We are not persuaded therefore that the primary judge erred in holding that the [accused’s] mental condition, or even the chances of its deterioration however caused, warranted the grant of the stay, and that the majority in the intermediate court erred in relation to that holding. The holding of the primary judge was essentially a factual one and included a discretionary component. His Honour’s position was that it was in everyone’s interests, including [the accused’s] that the trial proceed as quickly as possible.
The ground of appeal relating to the stay should therefore be rejected. This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of the stay even of the special hearing for which it provides although instances of them are likely to be rare.[32] This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave.
[29] At [31], [33] to [35].
[30] R vHakim (1989) 41 A Crim R 372 at 377; R v WRC (2003) 59 NSWLR 273 at 281 [51] – [52].
[31] (1993) 177 CLR 378 at 396; 112 ALR 289 at 300.
[32] See R v WRC (2003) 59 NSWLR 273.
There is, in effect, no mental element to the charges facing the applicant in this matter. The anticipated trial of the objective elements, whether it were to be held before a jury or a judge sitting alone, would not differ in practical terms from a full trial on the merits. The outcome would be different in the event of a finding that the objective elements had been proved. Whilst a formal not guilty verdict would be entered, the applicant would be declared liable to supervision for a limiting term equivalent to the period of imprisonment which, in the court’s opinion, would have been appropriate had he been convicted.[33] However, the fact that the matter is to proceed pursuant to Part 8A of the Act does mean that a number of the matters relied upon by the applicant in support of the stay, ordinarily, must carry less weight than otherwise. The fact that the applicant cannot participate fully or perhaps at all in the trial of the objective elements is not a matter that ordinarily would strengthen the application for a stay. As Besanko J pointed out in Abdulla this will invariably be the case. Parliament has made specific provision for the consequences of this particular state of affairs and that specific provision contemplates an investigation, if not a trial, proceeding notwithstanding the applicant’s incapacity and any ensuing prejudice that necessarily would follow.
[33] Section 269O Criminal Law Consolidation Act.
Nevertheless, on the basis of R v Sexton, R v WRC and R v Subramaniam, I am not prepared to reject the submission by counsel for the applicant that the court’s inherent jurisdiction to grant a stay of proceedings remains open even in the context of Part 8A proceedings. Even in Abdulla, the majority left open the situation where “special or unusual” circumstances might exist. However, as counsel conceded, neither the researches of counsel nor of myself have unearthed a decision where a permanent stay has been granted in the context of Part 8A proceedings or their earlier equivalent in this state. It is also of note that the High Court in Subramaniam, in leaving the door open for a successful stay application, referred only to the situation where it would be out of accord with common humanity to continue with the proceedings having regard to an accused’s deteriorating condition. Later in its reasoning the High Court appeared to focus not just on a continuing deterioration of an accused’s mental condition but on the potential a trial might have for its aggravation.
On the medical evidence before the court in this case it seems highly likely, perhaps inevitable, that the applicant’s mental and physical condition will continue to deteriorate and significantly so. Indeed, the medical evidence suggests that the applicant’s life expectancy remains, as at today’s date, very short. However, it is not expected that the applicant will play any part in these proceedings. He has not attended court on any occasion for many years now. According to his counsel the applicant does have an understanding of the nature of the proceedings, that is, what is alleged against him and no doubt would have a keen interest in the outcome. Nevertheless, there is nothing before the court to suggest that the continuation of these proceedings, in the manner that is contemplated, would, of itself, lead to any aggravation of his condition either mental or physical. Accordingly, in my view this case does not fall within the only example given by the High Court of circumstances where a permanent stay might be granted with respect to proceedings of this nature.
That is not to say that the application ought to be dismissed for this reason alone. I am prepared to accept, at least for the purposes of this case, that the jurisdiction inherent in the court to grant a stay of Part 8A proceedings is more broadly based and might encompass situations other than the one example given in Subramaniam.
The factual basis for the application for a stay
I am satisfied that the long delay in bringing these matters before the court, the advanced age of the applicant, the physical and mental condition of the applicant, in combination, will cause or contribute substantially to forensic prejudice. In other words, I accept that it will be extremely difficult if not impossible for counsel to obtain adequate instructions so as to enable the Crown case, with respect to the objective elements, to be fully and comprehensively challenged to the extent it might otherwise have been capable of being so challenged. For example, the applicant may well now find it impossible to be able to recall where he was at certain critical times, what he did at certain critical times, whom he was with at certain critical times and so on. Such evidence, had it been available, might have served to assist in challenging the reliability of aspects of a particular complainant’s account. In addition, documentation contemporaneous with the alleged events and potential alibi type witnesses might no longer be available to the defence. Nevertheless, these are potential difficulties for an accused that arise, almost as a matter of routine, with respect to allegations of historical sex offending. On its own this is rarely, if ever, a sufficient ground for a permanent stay of proceedings. A court properly instructed and particularly so where sitting as a judge without a jury, can be expected to pay serious and proper regard to these difficulties that confront the defence. The issue has been expressly taken up by s 34CB of the Evidence Act and the direction that ordinarily will be given in the terms required by that section.[34]
[34] Whether or not a trial judge sitting alone is required to give him or herself the warning contemplated, bearing in mind that the section expressly provides only for a direction to be given to “the jury”, such a trial judge typically would direct him or herself in the appropriate terms where called for as a matter of fairness. As to the requirements of s 34CB see generally R v Cassebohm (2011) 109 SASR 465; [2011] SASCFC 29.
In addition, the end result, however it might have come about, to the effect that the applicant is unable to properly instruct counsel with respect to matters potentially relevant to a defence has been, in effect, subsumed by the fact that Part 8A proceedings are being undertaken. In other words, the delays in this matter have lost their sting. Having said that, I acknowledge that there has been significant delay between the first set of proceedings before his Honour Judge Clayton and the present proceedings going to trial and that the applicant has been subject to the pressure of uncertainty concerning the disposition of the present allegations for many years now.
In addition, it is probably the case that with a more diligent application of resources by the prosecuting authorities the present proceedings might have been dealt with perhaps in 2006 or 2007. It also must be acknowledged that, as a result, the applicant’s mental faculties have deteriorated further over that intervening period of delay. Nevertheless, the applicant was found unfit to stand trial as long ago as July 2006 and there is evidence that his mental faculties may have started to deteriorate from as early as 2003. For these reasons, I do not propose to place significant weight on this further delay between 2006 and now.
The second fundamental issue or basis for a stay, relied on by the defence, is the submission that the present proceedings lack utility. The applicant maintains that the legitimate public interest in seeing the disposition of charges of serious offences, in the conviction of those guilty of crimes and in the need to maintain public confidence in the administration of justice has already been satisfied in this case. The accused has been found guilty of sexual offending against the complainant GU and there has already been substantial publicity concerning the accused, not only with respect to the allegations of sexual offending proved before his Honour Judge Clayton but with respect to a broader range of allegations of sexual offending generally.[35] In addition, the applicant, now 82, is part way through serving a limiting term of 6 years and 6 months which is not due to expire until June 2014 at which time the applicant, if he remains alive, will be just short of his 86th birthday. Furthermore, it must be accepted that, even if the accused were still alive at the expiration of the limiting term presently in place, his physical circumstances would not change significantly in any event. The applicant is obliged by the terms of his licence to serve the limiting term under home detention conditions. However, he is totally housebound for other reasons. Nothing will change when the limiting term comes to an end. In these circumstances, the applicant submits that there is a level of futility about continuing with the present proceedings. Even if the objective elements were to be made out, all that could result would be the imposition of a further limiting term, perhaps even one that would be served partially or wholly concurrently with the existing limiting term and anything other than a continuation of home detention conditions almost certainly would not be in contemplation. The applicant also submits, in reliance on the medical evidence, that he is unlikely to survive even to the end of the present limiting term. As such, there is simply no utility in continuing with the present proceedings and, because of this lack of utility and given the applicant’s physical and mental circumstances and age, common humanity strongly suggests that enough is enough.
[35] See the affidavit of Sarah Willis sworn on 3 August 2011. The applicant does not rely on publicity itself as having caused prejudice to his ability to receive a fair trial and rightly so given that the matter is to proceed before a judge sitting alone without a jury. The applicant relies on publicity as evidence of the fact that the applicant has already been exposed to and vilified by the public and that, to this extent, justice has been served.
I accept that when the focus is directed towards the applicant, that is, his physical and mental circumstances, his age and the fact that he is likely to die while still serving the present limiting term, the argument as to lack of utility carries significant weight. However, in my view the applicant’s submissions understate, and significantly so, the public interest in continuing with these proceedings. Thus far, the applicant has been found to have committed the objective elements of only two sexual offences, one of indecent assault and one of buggery with respect to the one victim. A course of conduct has not yet been established. On the Crown case – albeit yet to be proved – in addition to these earlier findings, the applicant was involved in sexual offending of a most serious nature over an extended period of time. The present proceedings concern four additional complainants and very serious allegations of charged offending against an alleged background of an ongoing course of conduct of similarly serious offending.
In this respect, this case is quite distinguishable, to my mind, from the circumstances in R v Liddy. In the present case, and notwithstanding the publicity that is in place, the public does not, in any real sense, have a full appreciation of the extent and nature of the sexual offending involving significant breaches of trust, engaged in by the applicant over a lengthy period of time –should the Crown case be established. I accept the Crown argument that the community expects those who are charged with criminal offences to be brought before the courts and dealt with and that the public interest rises or increases with the seriousness and I would say, the number of the charges. I accept the Crown submission that the previous matter before Judge Clayton does not in any way reflect the scope and gravity of the allegations in the present proceedings.
I also accept the Crown submission that the four complainants in this matter have a significant interest in having their matters heard by the court. There is a public interest in the victims of serious offences having the opportunity to present their allegations in court and to be publically vindicated. It is important that they have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in open court. Further, and as I indicated in Liddy, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the victims concerned, which, of itself, can be in the public interest. In this respect, I recognise the argument that Part 8A proceedings are focused more on protection of the community and treatment of the perpetrator rather than vindication for the complainant and punishment. However, to the extent that this argument may carry any weight in proceedings for a stay such as the present, I would be inclined to give it more weight in the case of an applicant found mentally incapable of committing an offence as opposed to one, as here, found unfit to stand trial.
A further consideration in this context is that it ought not to be assumed, particularly given the direction that almost inevitably will be required pursuant to s 34CB of the Evidence Act that any or all of the allegations by the four complainants will be established. Indeed, only two of a large number of allegations about which evidence was lead before his Honour Judge Clayton were found established at that trial of the objective elements. This, in itself, is a reminder of the very important protection available to the applicant by virtue of the requirement that the allegations will have to be proved beyond reasonable doubt and as to how seriously the courts attend to this requirement, particularly in cases where, as here, there is to be no effective contradictor. It should not be forgotten that a trial of the objective elements in this matter is an opportunity for the applicant to be found not guilty with respect to some or all of the allegations.
When the interests of the community, the complainants and the applicant are considered the need to maintain public confidence in the administration of justice by continuing with these proceedings remains a significant consideration.
Conclusion
This is not a case where I am persuaded that irreparable material unfairness deriving from delay, pre-trial publicity or some other factor necessarily will attend the trial of the objective elements in this matter. I am not satisfied that there is a risk to a fair trial that can be characterised as an unacceptable risk bearing in mind that the proceedings are to take place pursuant to Part 8A of the CLCA. The risks to a fair trial that are likely to arise in this case are those that are necessarily inherent in and regarded, almost by definition, as an unavoidable aspect of that type of proceeding and, as such, have arisen notwithstanding the lengthy delay.
Furthermore, there are a number of features in this matter that serve to distinguish it from the factual basis underlying the application in Liddy. For example, there is a greater utility underlying the present proceedings in this case than was the case in Liddy and the changes to the legislative framework, as discussed in Liddy, have not caused prejudice to the applicant in the same way or to the extent that I found to be the case in Liddy. In addition, whilst I am satisfied that the applicant’s physical and mental state is very poor and continues to deteriorate, I am not satisfied that the continuation of these proceedings would contribute to that in any realistic way. I am not satisfied, to adopt the characterisation referred to by the High Court in Subramaniam,[36] that a continuation of the proceedings would be “out of accord with common humanity”.
[36] (2004) 211 ALR 1 at [31].
I return to the fundamental test set out in the plurality judgment in the High Court in Walton v Gardiner.[37]Having undertaken this weighing exercise and having considered the matters raised both during oral submissions and in the respective written outlines filed on behalf of the applicant and the prosecution, I am not satisfied that a permanent stay of proceedings is called for in this case. The application is refused.
[37] Mason CJ, Deane and Dawson JJ (1993) 177 CLR 378 at 395 – 396:
The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the applicant, the legitimate public interest in the disposition of charges of serious offences and the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice.
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