R v Marshall
[2006] SADC 115
•3 October 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2006] SADC 115
Reasons for Decision of His Honour Judge Clayton
3 October 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY
Accused mentally unfit to stand trial. Application for stay of trial of objective elements of the offences.
HELD: Accused has not identified special and unusual circumstances. Application for stay of trial dismissed.
Criminal Law Consolidation Act 1935 ss 269H, 269N, Part B, referred to.
R v Burns (No 2) (1999) 169 ALR 149; R v Abdulla [2005] SASC 399; Barton v The Queen (1980) 147 CLR 75; Jago v District Court of NSW (1989) 168 CLR 23; R v Wahlstedt (2003) 231 LSJS 140; R v Wahlstedt (No 2) [2005] SADC 87; R v WRC (2003) 143 A Crim R 503; R v Littler (2001) 120 A Crim R 512; R v Liddy (No 4) [2001] SASC 152; R v Davis (1995) 81 A Crim R 156; R v Glencross (2000) 206 LSJS 158, considered.
R v MARSHALL
[2006] SADC 115
Mr Marshall is charged with two counts of indecent assault, four counts of buggery and one count of procuring an act of buggery. The offences are alleged to have been committed between 26 June 1973 and 2 October 1975. Each of the seven counts involves the same victim.
Between 17 July and 21 July 2006 I heard an application pursuant to section 269H of the Criminal Law Consolidation Act 1935 as to whether Mr Marshall was mentally fit to stand trial. On 21 July 2006 I found that the mental processes of Mr Marshall were so disordered or impaired that he satisfied the requirements of paragraphs 269H(b) and (c) of the Criminal Law Consolidation Act 1935 and that he was mentally unfit to stand trial on the charges of the offences against him.
In the ordinary course the court would now proceed with the trial of the objective elements of the offence contemplated by section 269N Part B. On 21 July 2006 counsel for the accused foreshadowed an application for a stay of proceedings. Counsel said that he had “taken senior advice” and that he had become aware of medical facts regarding the accused to the effect that the accused had “dramatically deteriorated in recent times”. At that time the court had spent the previous four days hearing evidence and submissions about the medical condition of the accused on the application pursuant to Part 8A. Counsel implied that the condition of the accused was in fact worse than had been put to the court during the course of that application. Counsel was asked what the basis for the stay application would be and he replied:
I don’t want to be nailed down to what it would be in its entirety but one aspect of it would be that for the matter to proceed is an abuse of process.
He was not ready to make the application at that time. Counsel referred to R v Burns (No 2)[1] in support of the proposition that in exceptional circumstances a stay may be ordered as a matter of “common humanity” where a defendant is so ill that it would be unfair to subject him or her to a trial.
[1] (1999) 169 ALR 149
On 24 August 2006 an application was made for a stay of proceedings. The argument focussed mainly on the power of the court to grant a stay rather than the merit of the application. Counsel for the applicant relied upon the dissenting judgment of Debelle J in R v Abdulla[2]. He referred to paragraph 51 of the reasons of Debelle J where His Honour said:
It is well settled that there can be no trial of a person who is unfit to plead. It is equally well settled that the Court has an inherent jurisdiction permanently to stay proceedings to prevent an abuse of its processes:
[2] [2005] SASC 399
In his reasons, Debelle J referred to the well-known cases of Barton v The Queen[3] and Jago v District Court of NSW[4] which establish those propositions. As Debelle J observed the power to permanently stay proceedings will be exercised in exceptional cases only (Barton at pages 97 and 116) and the decision whether to order a permanent stay requires a balance of the interests that are at stake. On the one hand there are the interests of the accused in obtaining a fair trial and on the other the community’s right to expect that persons charged with criminal offences are brought to trial (Barton at 102-106 and Jago at 32).
[3] (1980) 147 CLR 75
[4] (1989) 168 CLR 23
Counsel for the accused also relied upon R v Wahlstedt[5] where Judge Rice said:
It is only stating the obvious to say that these alleged events occurred a long time ago. It would appear that the allegations first arose in early 1999. It is well known to the law that allegations at that age are difficult to prove. It is equally well known it is difficult to mount a defence to such charges when they arise over a decade after the events are alleged to have happened and are made without warning. Often no more may be possible than a blanket denial that any such events occurred. The ability of a normal person to recollect specific occasions that long ago, even if they occurred, is very difficult. Rarely is an alibi able to be put forward and it would only be in an extraordinary case that forensic evidence would be available to anyone. There are a range of problems when allegations relate to a time far removed from the present, not least of which in the present case is the accused physical and mental condition.
[5] (2003) 231 LSJS 140
Counsel emphasised that Judge Rice was dealing with a delay of a decade whereas in the present case the delay has been thirty-three years. He summarised his argument thus:
My submission is this, harking back to the words of Judge Rice; we have a situation here where a blanket denial is all that anyone can make about any of these allegations. It really is the situation in my submission that anyone who can show that they were alone with the accused can make allegations. There is no effective way of testing these allegations in all the circumstances after these thirty-three years. So it is my submission that this is a special and unusual circumstance and it is a circumstance in which the court’s role of testing in any realistic manner, any effective manner, the charges and the evidence, has been removed from it.
Additionally, counsel put that section 269H is focussed on mental fitness and that one has to look at whether the infirmities of the accused are covered by section 269H.
Counsel relied upon the evidence which had been tendered on the Part 8A inquiry but he did not tender any evidence to support the statement that the accused had “dramatically deteriorated” and did not make any submission with respect to the evidence or refer to any part of the evidence. In a written outline of argument he wrote:
It will be submitted that, prior to R v Abdulla a permanent stay could be granted on the basis that it would offend common humanity to require the defendant to stand trial.
He also wrote that to remove the common law ground for a stay from the law required more than the indirect treatment set out in Abdulla.
Counsel for the Crown acknowledged that there is the option of a stay where special and unusual circumstances exist. He referred to R v Wahlstedt (No 2)[6] (which he said had been decided incorrectly) where Judge Rice ordered a permanent stay of the charges. Counsel for the Crown also referred to a decision of the New South Wales Court of Criminal Appeal, R v WRC[7] where the authorities are reviewed.
[6] [2005] SADC 87
[7] (2003) 143 A Crim R 503
There is no doubt that the court has an inherent jurisdiction to permanently stay proceedings to prevent an abuse of its processes. The principles to be applied emanate from the decisions of the High Court in Barton and Jago and have been restated many times. It is accepted that the power to grant a stay of proceedings will only be exercised in exceptional cases (Barton at pages 97 and 116). The onus rests with the party applying for a stay and the cases emphasise that it is a heavy onus.
As I understood the submission by counsel for the accused, the special and unusual circumstance in the present case is that there is no effective way of testing the allegations relied on by the Crown after thirty-three years.
In R v Littler[8] the Court of Criminal Appeal in New South Wales allowed an appeal and stayed indictments where the alleged offences occurred between thirty-eight and forty six years earlier at a boys’ home. In that case there was medical evidence about the appellant’s poor health and memory problems and evidence that evidence relevant to the defence was no longer available. Hodgson JA said:
As shown by Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307, 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.
[8] (2001) 120 A Crim R 512
The factors which motivated the court in that case were the delay, the absence of relevant evidence, the possibility of the loss of potential witnesses and the health and psychological condition of the accused.
In the present case the grounds which might justify a stay are the delay and the ill health of the accused. On the application counsel for the accused did not refer to any evidence at all and no submission was made as to the way in which the requirements for a stay have been satisfied.
In reality what is sought is a stay of the inquiry into whether the objective facts have been established, but there is no reason why the same criteria that apply to a stay of the prosecution generally should not apply.
While it may not be necessary for the grounds for the stay to be verified on oath as they were in Littler, the basis for the stay should at least be articulated with some precision. In Littler a list of potential witnesses was provided and the District Court judge had accepted that many of the potential witnesses were dead, mentally incapacitated or unable to be located.
In the present case the accused has not pointed to any facts which are said to support his application, save for the delay and the accused’s mental incompetence. Any prejudice arising out of the mental incompetence alone of the accused is dealt with by the order under Part 8A. By itself mental incompetence is not a reason for a stay of proceedings. To justify a stay something further is required. Apart from the fact of the delay, counsel did not identify any other feature which would justify a stay. The court is left to use its imagination. The onus rests with the accused to identify the prejudice which would justify a stay of proceedings.
In Jago v District Court (NSW) Mason CJ said (at 30-31; 311-312):
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.
Mason CJ also said (at 33; 314):
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 (1980) 147 CLR 75 at 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’: Clarkson [1987] VR 962 at 973.
In my opinion, the accused has not discharged the onus and shown that the lapse of time is such that any trial would necessarily be unfair so that any conviction would bring the administration of justice into disrepute. The court should not be left to guess as to the ways in which the accused may suffer prejudice. The application must be determined on the basis of the material brought forward by the accused and the submissions put by his counsel. In my opinion, the accused has not established that special and unusual circumstances exist so as to justify an order staying the trial of the objective facts.
In R v Liddy (No 4)[9] the accused applied for a stay of proceedings in respect of sexual offences alleged to have been committed about eighteen years earlier. There was an inability to obtain records which were necessary to present a defence. Justice Nyland, after reviewing the cases, found that there was no special prejudice and that the circumstances did not justify a stay. The application was refused. The cases referred to by Her Honour included R v Davis[10] where a stay was granted on the basis that the secretary of a doctor had destroyed the medical records of ex-patients during the period of the delay.
[9] [2001] SASC 152
[10] (1995) 81 A Crim R 156
Nyland J referred to a summary by Mullighan J (in R v Wagner (1993) 66 A Crim R 583) of principles extracted from the judgment of Cox J in R v Polyukhovich (Judgment No S3782, unreported 7 December 1992) as follows:
1.It would be a rare case in which mere delay, even very long delay, would lead to a stay in the absence of some evidence of actual prejudice to the applicant: p9.
2.Abuse of process in this context is all about the risk of an unfair trial and what may be done about it: p10.
3.Every case must be judged on its facts, with particular attention to any countervailing steps, such as procedural directions or warnings to the jury that may be taken before or during the trial, to deal with apprehended unfairness: p10.
4.A fair trial is not the same as a perfect trial and it is not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence: p10.
Nyland J also referred to the decision of the Full Court in R v Glencross[11] where Bleby J (with whom Lander and Wicks JJ agreed) said (at 165):
There may always be some degree of unfairness as a result of the fading or distorted memories by reason of delay in a trial. However, as I have pointed out, delay in itself is insufficient. Indeed, in some circumstances such factors can be of advantage to a defendant, bearing in mind the criminal standard of proof.
[11] (2000) 206 LSJS 158
Bleby J also pointed out that the appellant in Glencross could not say that evidence existed of which he could have made use but which was not then available to him.
Nyland J said that the principles enunciated in Glencross were of equal application in Liddy. Her Honour said:
The accused is undoubtedly prejudiced in the preparation of his defence as a result of the long delay in these issues being brought to the attention of the authorities. The problems encountered by him in checking records and the like are the inevitable result of that delay. There would not, however, appear to be anything exceptional or unusual about that.
There would not appear to be any special prejudice as arose in Davis. It will be necessary in due course to give the jury a strong warning about the effects of this delay upon the accused but that delay does not mean that the accused cannot have a fair trial. It is clear from all the authorities that delay in itself is not sufficient to justify a stay.
The charges alleged against the accused are serious. They relate to five separate complainants. As well as having regard to the right of the accused to have a fair trial, regard must be had to the community’s right to expect that persons charged with serious criminal offences be brought to trial. It do not think that the circumstances of this case justify a stay.
In the present case the lengthy delay speaks for itself and there is also the mental incompetence of the accused. The mental incompetence of the accused is dealt with by the order made under Part 8A. In my opinion more than the fact of a lengthy delay is required. The accused has not pointed to any prejudice arising from the delay and has not satisfied the onus.
The application for a stay of proceedings is dismissed.
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