R v Marshall (No 2) - [2007] SADC 97

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v MARSHALL (No 2)
[2007] SADC 97
Reasons for Ruling of His Honour Judge Clayton
17 September 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - DELAY
Delay of 34 years since the alleged commission of offences - accused found mentally unfit to stand trial - suffering from physical disabilities - difficulty in providing instructions - no particular prejudice identified.
HELD: After balancing all considerations a permanent stay of proceedings under Part 8A should not be granted on the basis of the very unfitness for trial which was the reason for the order made under Part 8A.
Criminal Law Consolidation Act 1935 Part 8A, referred to.
R v Marshall [2006] SADC 115; Jago v District Court of NSW (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75 at 111; R v Abdulla [2005] SADC 399; R v Littler (2001) 120 A Crim R 512; Longman v R (1980) 168 CLR 79; Crampton v R (2000) 206 CLR 161; Doggett v R (2001) 208 CLR 343; Aitchison v DPP (1966) 90 A Crim R 448 at 459-60; Subramaniam v R (2004) 211 ALR 1; R v Hakim (1989) 41 A Crim R 372 at 377; R v WRC (2003) 59 NSWLR 273 at 281; R v Burns (No 2) (1989) 169 ALR 149; R v Sexton (2000) 77 SASR 405; Walton v Gardiner (1993) 177 CLR 378; R v Liddy (No 4) [2001] SASC 152; R v Polyukhovic Judgment S3782; R v Wagner (1993) 66 A Crim R 503; Gill v DPP (1992) 64 A Crim R 82 at 94; Hoch v R (1988) 165 CLR 292; Tolmie Unreported, CCA, NSW, No 60503 of 1994, 7 December 1994; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685, considered.

R v MARSHALL (No 2)
[2007] SADC 97
Reasons for order made on 17 September 2007 dismissing the application by the accused for a permanent stay

The applicant 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 August 1973 and 2 October 1975. The applicant was first arraigned on those charges in this court on 14 November 2005.
On 21 July 2006 I found that the mental processes of the applicant were so distorted or impaired that he satisfied the requirements of subparagraphs (b) and (c) of section 269H of the Criminal Law Consolidation Act 1935 and was mentally unfit to stand trial on the charges of the offences against him. As a consequence of that finding the court is required to proceed pursuant to section 269MB with a trial of the objective elements of the offence. Subsection (1) provides:
If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.
Following my finding that the applicant was mentally unfit to stand trial he applied for a permanent stay of the trial of the objective elements of the offences on the grounds of delay and a deterioration in his mental and physical health. On 3 October 2006 the application for a stay was dismissed[1].
[1] R v Marshall [2006] SADC 115
The trial of the objective elements of the offence was then listed for hearing on 15 January 2007. After the dismissal of the application for a stay the applicant retained new legal advisers who, on 14 December 2006, sought and were granted an adjournment to enable them to obtain instructions from the applicant. On 18 January 2007 the trial of the objective elements was listed to take place on Monday, 10 September 2007.
On 27 August 2007 the applicant lodged a further Rule 8 application seeking an order that the trial of the objective facts be permanently stayed. The application particularises the grounds for the application and after setting out the background asserts:
(12)A permanent stay should be granted in all the circumstances of this case and in particular:
(i)      the long delay between the alleged offending and the reporting of the alleged offending to the authorities;
(ii)     the applicant’s physical conditions;
(iii)     inconsistencies which appear on the face of the prosecution case;
(iv)    the legal requirement for warnings as to the dangers of finding facts proved beyond reasonable doubt on the complainant’s evidence;
(v)     the applicant’s memory impairment;
(vi)    the combination of the inherent deficiencies in a trial of the objective facts where a defendant is mentally unfit to stand trial and the lengthy delay;
(vii)    the limitations on the ultimate disposition of the case imposed by the previous finding of mental unfitness and the applicant’s physical condition;
(viii) the requirements of common humanity in a case where the applicant’s general condition is continually weakening with increasing pain levels and frailty.
The power of the court to grant a permanent stay of criminal proceedings is well understood. A permanent stay should only be granted as a remedy of last resort in extreme cases if the accused can establish that to proceed with the trial would be an abuse of the processes of the court. The court is required to undertake a balancing process which takes into account the interests of the accused, the interests of the alleged victims of the crime and the interests of the community generally (Jago v District Court of New South Wales[2]; Barton v The Queen[3]; R v Abdulla[4]).
[2] (1989) 168 CLR 23
[3] (1980) 147 CLR 75 at 111
[4] [2005] SASC 399
The requirement that a stay should not be granted too readily was discussed by Brennan J in Jago where His Honour said (at 50):
The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.
Delay in a prosecution is a relevant factor but is not by itself a reason for a permanent stay of proceedings.
I accept the submission on behalf of the applicant that the court can entertain a second application for a stay. A number of cases where second applications were made were referred to. However, as a matter of simple logic, the applicant should be required to identify some additional ground which was not before the court at the time of the earlier application in order that the decision be reversed. On the present application evidence was called to establish that the physical and mental health of the applicant had deteriorated since the time of the earlier application. In addition, counsel for the applicant put forward arguments which were not put in support of the earlier application.
In his oral argument counsel said that the application for a stay was advanced on two bases. First, there is the combination of the delay and the mental unfitness of the applicant. Secondly, counsel said that the state of the applicant’s health and his prognosis generally means that it would offend common humanity to allow the trial to proceed.
Counsel said that the catalyst for the original report to the police by the complainant was a media report of allegations by another person that the applicant had committed sexual offences against the other person. Whilst it was not put explicitly the argument on behalf of the applicant criticises the circumstances in which a complaint was first made by the complainant and infers those circumstances are a reason to doubt his credibility.
Counsel pointed to an inconsistency in the statements of the complainant. In one statement the complainant said that at the time of the alleged offences his “sexual experience was non-existent” while in another statement he said he had been anally raped by another man in early 1973 and that when he disclosed that anal rape to his parish priest the priest had also indecently assaulted him.
Counsel referred to the possibility that evidence had been contaminated by reason of discussions between the complainant and another potential witness.
Counsel criticised the police investigation, arguing that while there were statements from “peripheral players”, there were no statements from people closely involved in the performance of a pantomime during which some of the offending is alleged to have taken place. He criticised the absence of statements from “people who were directly operating the offstage aspects of the production”. The complainant alleges that Counts 1 was committed behind-the-scenes while a performance was actually taking place.
Counsel referred to the program for the pantomime and said there were no statements from persons who took significant roles on stage or were part of the management of the theatre. He referred to two specific persons whom I will refer to as Mr A and Ms B. At that time counsel had been provided with a statement of an investigating officer dated 10 September 2007 in which the investigating officer said he had been unable to locate either Mr A or Ms B. On 10 September 2007 counsel for the applicant complained “that is the first we have heard that any effort has been made to obtain statements from either of (Mr A and Ms B)”.
Counsel referred to a passage in the reasons of the New South Wales Court of Criminal Appeal in R v Littler[5] which refers to the obligation on investigating police to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. Counsel said that Mr A became a particular friend of the complainant during the production and “may have had things to say about the absence of (the complainant) and the (applicant) in the period between the morning and afternoon sessions” when Counts 3 and 4 are alleged to have taken place. I will return to that submission later.
[5] (2001) 120 A Crim R 512 at 516
Counsel also complained that there were no statements from persons associated with a television station where the offence charged in Count 7 is alleged to have occurred.
Counsel advised the court that he was unable to get reliable instructions to properly defend the case. That submission was supported by an affidavit of the solicitor for the applicant. There is no reason not to accept the contents of the affidavit or the statement of counsel.
Counsel referred to the need for the type of warning referred to in the cases of Longman v R[6], Crampton v R[7] and Doggett v R[8]. I have no difficulty in accepting that warnings will be required because of the lengthy delay which has occurred, but the submission does not really advance the application for a stay, because the warning would itself be intended to alleviate the consequences of the delay.
[6] (1980) 168 CLR 79
[7] (2000) 206 CLR 161
[8] (2001) 208 CLR 343
Counsel argued that the court should look at the purpose of the proceedings under Part 8A of Criminal Law Consolidation Act 1935. He said that the proceedings are designed to provide a mechanism to ensure the treatment of the applicant and thereby the protection of the community, and by reference to Aitchison v DPP[9] argued that where the proceedings cannot serve a useful practical purpose a stay may be granted.
[9] (1966) 90 A Crim R 448 at 459-60
Counsel submitted that another basis for the application was the requirements of common humanity. He submitted that punishment as such is out of the question in this case because of the ruling on the unfitness of the applicant to plead. He said that “reasonable members of the community would not expect that the court would permit a trial of objective facts in relation to events which occurred at least 34 years ago in a situation where the applicant is in the physical and mental condition in which he finds himself” and submitted this was “one of those rare and exceptional cases where common humanity dictates that the matter be stayed”.
In Abdulla the Court of Criminal Appeal upheld the decision of Judge Millsteed who had refused an application for a stay at common law on the ground that the procedures to determine fitness to stand trial provided for in Part 8A of the Act were applicable. Counsel for the applicant submitted that the decision in Abdulla does not preclude the granting of a stay on common law principles in a Part 8A case where there are special and unusual circumstances.
I accept that it may be appropriate to grant a stay of a hearing of the objective elements pursuant to Part 8A where there are reasons which are unrelated to the mental fitness of the applicant. An example would be a case where evidence had been deliberately destroyed by the prosecution. However, Abdulla establishes that the position is different when what is sought is a permanent stay of Part 8A proceedings solely on the ground of the mental unfitness of the applicant which is the very condition that Part 8A deals with.
Counsel referred to the decision of the High Court in Subramaniam v R[10] in support of the proposition that even in cases where legislation provides for a special hearing there might be a basis on which the court would stay that special hearing. Subramaniam was not referred to in Abdulla.
[10] (2004) 211 ALR 1
In Subramaniam a tribunal constituted under the Mental Health (Criminal Procedure) Act 1990 (NSW) formed the view that the appellant was not fit to be tried for an offence and the Attorney General had directed that a special hearing be conducted pursuant to the Act. The Mental Health (Criminal Procedure) Act 1990 (NSW) is in some respects an equivalent of Part 8A of the Criminal Law Consolidation Act 1935. Notwithstanding the existence of the procedure established by the special act, the appellant in Subramaniam argued that the proceedings should be permanently stayed by reason of her current mental infirmity together with the potential for its exacerbation by reason of the proposed special hearing. It was said that the risk of exacerbation made the hearing so oppressive to the appellant as to justify a permanent stay. In their joint reasons the members of the High Court said that a relevant test was whether, in the light of the appellant’s condition, it “would be out of accord with common humanity” to have allowed the special hearing to proceed. That test was extracted from the decisions in R v Hakim[11] and R v WRC[12].
[11] 41 A Crim R 372 at 377
[12] (2003) 59 NSWLR 273 at 281 paragraphs 51-52
In Subramaniam the Full Court (at para 28) made the following observations about provisions such as Part 8A:
Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a “limiting term” of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the state Attorney General, provides reason to construe and apply the Act otherwise than according to its tenor.
In the court below in Subramaniam (the New South Wales Court of Criminal Appeal) Beazley JA (with whom Sully J agreed) had said with respect to the application for a stay:
It is often the case that, because of a person’s mental condition, the person is not able to give evidence or otherwise meaningfully participate in the trial. As I have said, his Honour considered that the interests of justice were best served by the trial proceeding as soon as possible… It is often the case with a person being tried under [the Act] that he/she cannot, in any practical or meaningful way, participate in the trial. Accordingly, I do not see any appellable error in his Honour having refused the application.
The High Court held (paras 29 to 35) that no error had been shown in the reasoning of the District Court Judge or the majority in Court of Criminal Appeal. The High Court said:
No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves.
The appellant relied not only upon her current mental condition, but also upon the potential for its exacerbation by reason of the special hearing. This, it was said, would be so oppressive to her as to justify a permanent stay.
A relevant test that has been applied and which we would adopt, is whether, in light of the appellant’s deteriorating condition, it “would be out of accord with common humanity” to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed (Hakim (1989) 41 A Crim R 372 at 377; R v WRC (2003) 59 NSWLR 273 at 281 [51]-[52]).
… But nonetheless it does appear that the primary judge did have regard to the whole of the medical evidence in reaching the decision that he did.
The possibility of the continuing deterioration of the appellant’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 (1993) 177 CLR 378 at 396; 112 ALR 289 at 300:
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 appellant’s mental condition, or even the chances of its deterioration however caused, warranted the grant of the stay, and that the majority of 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 appellant’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 the rare. 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 the stay if the risk were a real one, and the likely exacerbation grave.

In Subramaniam the High Court endorsed the decision of the New South Wales Court of Criminal Appeal in Hakim. In Hakim there had been a delay of 2½ years before proceedings were commenced during which time the health of the accused had deteriorated. The committing magistrate ordered that the proceedings be permanently stayed as an abuse of process. In the Supreme Court, Lee J was “unwilling to regard the deplorable medical condition in which Hakim himself as other than a reason for upholding the decision of the magistrate in this case”. Lee J said:
... Certainly the line is a very fine one between that state of affairs and the question that I have to determine here but I do feel compelled in the light of the medical evidence to take the view that to allow these charges to stand in the light of the continuing deterioration of Hakim, who is now 58 years of age, would be out of accord with common humanity when the fact is also that he has already to some extent suffered prejudice in regard to his memory from the passage of time between the commission of the alleged offence and now.
... I think this case falls within the class of case which can be regarded as abuse of process.
On the appeal to the Court of Criminal Appeal, Kirby P said that he was not convinced that an error of principle had occurred which required the intervention of the Court of Criminal Appeal. His Honour noted that Mr Hakim suffered from heart disease together with a range of physical neurological and psychological conditions, his memory was affected and his prognosis was poor. His Honour said:
... If, as Lee J found, it would offend common humanity to now require Mr Hakim to stand trial on the further charge of conspiracy, it was open to Lee J to stay the proceedings upon the charge. It will be a rare case that intervening illness or the physical or mental condition of the accused will bring a court to such conclusion. But Lee J was brought to it. And I would not disturb that conclusion in the facts of this case.
Kirby P noted (at 376) that Lee J stressed that each case depends upon the complex of facts which is proved, and that in Watson v Attorney-General (NSW)[13] it was observed that the jurisdiction was an exceptional one to be used sparingly. His Honour also observed that Lee J had a made it plain that the stay could not be sustained on the basis of delay alone or culpable delay on the part of the prosecuting authorities.
[13] (1987) 8 NSWLR 685
Clark JA (at 377) agreed with Kirby P that no error in the judgment of Lee J had been demonstrated and said:
... In my opinion the evidentiary material supported his Honour’s conclusion that although the delay in the prosecution was not culpable the deterioration of the respondent’s very grave medical condition in the period between July 1984 (when the New South Wales Police received the tapes) and the laying of the informations justified the making of a stay order. In this respect it is appropriate that I observe that the respondent’s medical condition and its deterioration both prior to, and following, the institution of the proceedings was obviously a relevant consideration. No doubt the weight to be accorded to that consideration will vary depending upon the circumstances under consideration but in this case it cannot be said, in my view, that the emphasis which his Honour placed on it demonstrates, or even suggests, error.
Gleeson CJ agreed with the reasons of Kirby P and Clark JA
For present purposes it is significant that in Hakim, unlike Subramaniam, the court was not dealing with an application to stay a special hearing pursuant to legislation under a statutory provision such as Part 8A. However, in Subramaniam the High Court acknowledged that the Hakim test could be appropriate in the case of a hearing under a special Act.
In R v Burns(No 2)[14] the accused had applied for a permanent stay on the ground of his unfitness for trial. Olsson J held that the scheme in Division 6 of the Crimes Act 1914 (Cth) ousted the operation of the common law powers of the court to grant a permanent stay of the prosecution on the ground of unfitness to be tried so that the court was required to determine the application by reference to Division 6. However when that case came before the Court of Criminal Appeal in R v Sexton[15] Gray J (with whom Prior and Williams JJ agreed) (at 412) disagreed with the decision of Olsson J that the effect of the scheme was to oust the operation of the common law inherent power to grant a permanent stay saying:
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 it is a matter of necessary implication. There is nothing in s 20B [of the Crimes Act 1914] to suggest that the inherent jurisdiction of the court to grant a permanent stay has been abrogated…
[14] (1989) 169 ALR 149
[15] (2000) 77 SASR 405
Gray J said (at 414) that nothing in section 269H or Part 8A of the South Australian legislation suggests that there should be any departure from the recognition of an accused’s right to a determination that he is unfit to stand trial as provided for, and protected by, the common law.
The procedure established by the Mental Health (Criminal Procedure) Act 1990 (NSW) was considered again in WRC. In that case it was argued that District Court proceedings should be permanently stayed as an abuse of process by reason of the unfitness of the accused. The Crown argued that the Act was intended to “cover the field” so that the steps required to determine fitness to be tried were dictated by the Act and it was therefore not open to the court to order a stay on the ground of the medical condition of the accused. The court held that the scheme established by the Act was not exclusive and did not exclude the implied jurisdiction of the District Court to control abuse of processes. Spigelman CJ, with whom Dunford and Hidden JJ agreed, referred (at 282) to Hakim, noted that since the decision of Hakim the court had explained the jurisdiction and elaborated upon it in Jago and Walton v Gardiner[16]. His Honour continued (at 282):
A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law. The public interest in ensuring that persons charged with crimes are tried is entitled to significant weight in the necessary balancing process. (See, for example, Jago (at 30 and 49-50).) Because of this, as Mason CJ said in Jago (at 34): “a permanent stay should be ordered only in an extreme case…”.
Woods DCJ purported to apply a test of “exceptional circumstances”. However, his Honour did not in my opinion, give proper consideration and weight to the existent of a system for determining the matters upon which he primarily relied to reach his conclusion. In Pt 2 of the Act, the Parliament has indicated that, in accordance with the normal procedures for trial of serious offences, issues of this character should usually be determined by a jury. His Honour arrogated to a judge the very function which the Parliament has indicated should be performed by a jury, as representative of the community.
…
His Honour’s approach to the alternative under Pt 2 was to assert, without elaboration of reasons: “this is not a case where it is necessary or appropriate to have reference to the special trial procedure to the exclusion of the remedy [of a permanent stay].
In this reasoning, his Honour failed to give weight to the existence of an alternative mechanism, to be determined by a jury, for deciding the very matters upon which his Honour primarily relied to reach his conclusion that this was one of those exceptional cases in which a permanent stay was appropriate. Where, as here, a specific statutory procedure with a different decision-maker, is laid down for the determination of the matter primarily relied upon for purposes of a permanent stay, it is difficult to conceive of circumstances in which it would be appropriate to find that the continuation of proceedings, which will involve the determination of that question by that procedure, should at that point be stayed, on the basis that any further proceedings would constitute an abuse of process. The Court should permit the special procedure to operate in accordance with its terms, unless there is some overwhelming reason for not allowing that to happen. There was no evidence of that character before his Honour. The medical evidence was not of that character.
His Honour purported to exercise a general unfettered discretion to decide whether a stay should be granted. However, with respect to the matters on which his Honour primarily relied, the discretion was not entirely unfettered because significant weight had to be given to the fact that a mechanism to resolve that issue was available. His Honour did not give that consideration appropriate weight and the discretion miscarried. This Court should re-exercise the discretion.
[16] (1993) 177 CLR 378
Spigelman CJ found that there was no authority in favour of the appellant’s contention under the analogous Commonwealth legislation and that the state scheme should be considered on its own terms. He said:
Part 2 contains a carefully constructed scheme for determining issues of fitness to be tried, which is comprehensive in its scope. That does not, however, mean that it is intended to be exclusive, in the sense of a mini-code, which operates to the exclusion of any other circumstance in which an issue capable of being characterised as raising a question of fitness to be tried may be determined in the course of criminal proceedings. Specifically, I see nothing in the statutory scheme that suggests that it should be understood to exclude the inherent power of a superior court to control its own processes and, particularly, its power to control abuse of its processes. As the majority joint judgment said in Walton v Gardiner (1993) 177 CLR 378 at 392-393, per Mason CJ, Deane J and Dawson J:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.
Whether the Parliament of New South Wales has the ability to pass laws to prevent a superior court exercising criminal jurisdiction from exercising its inherent jurisdiction to stay of proceedings on grounds of abuse of process, is a matter that could raise issues under the Commonwealth Constitution. No such issue has arisen during the course of argument in this case.
For present purposes, it is sufficient to rely on the principle of the law of statutory interpretation that a legislature will not be taken to overturn a fundamental principle of the administration of justice without expressing itself with pellucid clarity... There is a strong presumption that the legislature does not intend to abrogate the inherent jurisdiction of a superior court to control abuse of its processes.
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 Pt 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 inherent 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 Pt 2 of the Act covered the relevant field, should be rejected.
On the basis of those decisions, notwithstanding the specific procedure established by provisions such as Part 8A of the Act, I accept that in appropriate cases a permanent stay may be granted where the court forms the view that it “would be out of accord with common humanity” to allow a trial of the objective elements to proceed; but that in exercising my discretion I am required to give weight to the existence of the alternative mechanism in Part 8A. However, in the present case, as was the case in Subramaniam, the main difficulty for the applicant is that the Act assumes as the basis for its application to the applicant one of the matters upon which he would seek to escape its application, that is his current mental infirmity and its consequences.
Counsel for the applicant submitted that mental unfitness coupled with the very long delay together constituted special or unusual circumstances in the sense referred to by Besanko J in Abdulla such as to justify a stay. However, in this case, counsel has raised other arguments, apart from the mental unfitness of the applicant, which take the matter outside of the decision in Abdulla.
Part 8A acknowledges that a trial in the usual sense will not take place, but establishes a special regime to accommodate the trial of persons with mental impairment. For example, it is contemplated that there is no need for the applicant to attend the trial and section 269W clothes counsel with discretions and immunities which do not normally apply. Section 269W provides:
(1)If the defendant is unable to instruct counsel on questions relevant to an investigation under this part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant’s best interests.
It is not the prerogative of the court to question the fairness or effectiveness of the procedure which Parliament has determined in Part 8A. In this case the question is whether the trial of the objective facts should be stayed on the basis of the matters raised by the applicant.
I accept the submission of counsel that a trial of objective elements pursuant to Part 8A in which counsel utilises section 269W is likely to be more effective where there has been no delay because delay will make it more difficult for counsel to investigate allegations without the benefit of the proper instructions from the applicant. While delay may be relevant for that reason it is, in my opinion, still necessary for at least the possibility of actual prejudice to be demonstrated. By itself the fact of delay is meaningless.
If an accused does not actively participate in a trial of the objective elements pursuant to Part 8A a trial will obviously be a very one-sided affair. In addition, while section 269W may alleviate some of the difficulties and facilitate the trial, there are likely to be practical difficulties if counsel is required to defend serious charges without proper instructions. However, that it is the regime which is established by Part 8A and I do not think it is open to the court to determine that the procedure established by an Act of Parliament is by itself unfair in such a way as to lead to a permanent stay of proceedings.
It would be artificial to distinguish between the mental health and physical health of the applicant. Accordingly, the special procedure which applies under Part 8A in the case of mental unfitness for trial may also be a relevant matter when considering whether a stay should be granted on the basis of physical infirmity. That is if the special procedure addresses the problems consequent upon the mental unfitness of the applicant it may also address the problems consequent upon physical infirmity.
I now turn to discuss the arguments put forward by the applicant.
Particular 12(i) - delay
The authorities are clear, and it is accepted by the applicant, that mere delay, even a very long delay, is not by itself sufficient to give rise to a permanent stay of proceedings: R v Liddy (No 4)[17], R v Polyukhovic[18], R v Wagner[19]. Accordingly, the existence of delay is significant, but only if it leads to something else which causes actual prejudice.
[17] [2001] SASC 152 paragraph 14
[18] Judgment S3782
[19] (1993) 66 A Crim R 503
I accept the submission of the prosecutor that presumptive prejudice will not ground a stay and that actual prejudice must be shown. Jago (supra) per Mason CJ (at 33) and Gill v DPP[20]. In the latter case, Allen J in the Supreme Court of New South Wales commented that the fading of memory over the years which inevitably occurs can be inferred to cause actual prejudice where the circumstances are such that it is necessary to rely upon detail of the events. It has not been shown that present case is one where detail is likely to assume any significance. In Jago, Mason CJ, referring to the reasons of Wilson J in Barton, said (at 34):
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”.
[20] (1992) 64 A Crim R 82 at 94
Particular 12(ii) - the applicant’s physical conditions
The prosecution disputes the extent of the physical incapacity of the applicant. There is also a question which I referred to in my earlier reasons as to whether the applicant is malingering or exaggerating his disabilities. Notwithstanding those matters, there can be no doubt that the applicant is old, frail and restricted in his activities. In assessing this application the physical incapacity of the applicant is one matter that should be taken into account, but as I have mentioned the procedure established by Part 8A does for present purposes have practical relevance to both mental unfitness for trial and physical incapacity.
I do not accept that the further evidence adduced on behalf of the applicant in support of the present application establishes any relevant deterioration of the physical condition of the applicant since his first application for a permanent stay was dismissed.
As was the case with the earlier application for a stay, I find it unnecessary to consider whether and if so to what extent the applicant is exaggerating his disability.
Particular 12(iii) - inconsistencies which appear on the face of the prosecution case
The only inconsistencies which have been identified are relatively minor. They may go to the credibility of the complainant, but it is unnecessary for me to make any finding as to that at the moment. While the credibility of the complainant may be an important consideration at the trial of the objective elements I do not regard the inconsistencies relied upon as being sufficient, either alone or in conjunction of other matters, to be relevant to the application for a permanent stay of the proceedings.
Particular 12(iv) - the legal requirement for warnings as to the dangers of finding facts proved beyond reasonable doubt on the complainant’s evidence
I accept that the delay since the commission of the alleged offences establishes the need for a warning in the way discussed in Longman, Crampton and Doggett. The very purpose of the warning is to avoid the dangers associated with the delay.
For present purposes the need for a warning raises nothing additional to the fact of delay itself.
I do not regard the need for a warning, either by itself or in conjunction with other matters, as being relevant to the application for a permanent stay.
Particular 12(v) - the applicant’s memory impairment
I accept that the evidence establishes that the memory of the applicant is impaired. It is for that reason that I made the findings on 21 July 2006 that he had satisfied the requirements of subparagraphs (b) and (c) of section 269H of the Criminal Law Consolidation Act 1935 and that he was mentally unfit to stand trial on the charges of the offences against him. Mental impairment is the very condition that the special procedure was introduced to accommodate.
The memory impairment of the applicant is a matter which I must consider in the balancing process which I am required to undertake.
Particular 12(vi) - the combination of the inherent deficiencies in a trial of the objective facts where a defendant is mentally unfit to stand trial and the lengthy delay

Subject to the requirement to give weight to the purpose of the Part 8A procedure, this is also a matter to be considered in the balancing process.
Particular 12(vii) - the limitations on the ultimate disposition of the case imposed by the previous finding of mental unfitness and the applicant’s physical condition
It was argued on behalf of the applicant that the previous finding of mental unfitness to stand trial means that in the event that the court finds the objective facts proved there can be no order for punishment of the applicant but that the court would declare the applicant to be liable to supervision. Additionally, it was argued that if the court were to make a supervision order, the applicant’s physical and mental condition would render it difficult, if not impossible, for the court to make an order for the detention of the applicant and, if the court finds the objective facts proved, the most likely outcome would be an order for release on licence with conditions similar to the conditions on the applicant’s bail agreement.
I do not regard that submission as a reason for granting a permanent stay of proceedings. Even if the outcome was a release on licence, with the conditions suggested, that outcome would be that which is contemplated by the Act and serve a worthwhile purpose from the point of view of the complainant and the community. The benefits of the process, notwithstanding its imperfections, were outlined by the High Court in Subramaniam.
Particular 12(viii) - the requirements of common humanity in a case where the applicant’s general condition is continually weakening with increasing pain levels and frailty
The requirements of “common humanity” are relevant to an application for a permanent stay of proceedings in the way described in Hakim, Subramaniam and Littler.
The argument on behalf of the applicant was based upon a combination of his physical and mental conditions. The requirements of “common humanity” arise for consideration in the ultimate balancing process that I must carry out. I return to the topic later.
Other arguments put by counsel
I reject the submission that the evidence establishes the possibility of contamination of evidence by reason of discussions between the complainant and another potential witness.
I find that the evidence does not make out the possibility of contamination.
Counsel referred to Aitchison (at 459) per Higgins J. I do not accept that the possibility of contamination is a reason to grant a stay. As Higgins J observed in Aitchison, Hoch v R[21] establishes that contaminated evidence must be excluded as corroborative or similar fact evidence, but Aitchison does not establish that the possibility of contamination is a basis for a stay.
[21] (1988) 165 CLR 292
I do not regard the criticisms of the police investigation in this case as providing a basis for a stay. Counsel complained that statements had not been obtained from all the persons named in the program for the production. One of those witnesses has died and the whereabouts of others is unknown.
Counsel relied upon the decision of the New South Wales Court of Criminal Appeal in Littler. In that case the accused was charged with sexual offences which allegedly occurred between 38 and 46 years earlier at a boys’ home. He was in poor health and had memory problems. Evidence from potential witnesses was no longer available. While the Court of Criminal Appeal stayed the indictments, Hodgson JA acknowledged (at 513) that a permanent stay was a remedy of last resort only used in most exceptional circumstances where the trial would involve such oppressive unfairness incapable of being overcome that it would be an abuse of process. His Honour said:
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.
Hodgson JA referred to the need to have regard to the public interest in having a determination of the guilt or innocence of a person charged with serious offences as well as the interests of the alleged victims and continued:
... 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.
The requirement that the applicant should establish the “particular difficulties” that he would face in dealing with the trial is significant. In Littler the accused did produce an affidavit which confirmed his particular difficulties. As result of the contents of the affidavit Hodgson JA thought the ground for a permanent stay had been made out. Greg James J also thought that on an application of this kind sworn evidence from the accused should be given. The court noted that the Crown case focused entirely upon the evidence of the complainants and lacked supporting evidence and corroboration. Adams J said (at 516, para 25):
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.
Adams J referred (at 521, para 37) to cases where an assessment had been made of the possible significance of the evidence said to be unavailable. He referred to an unreported decision of Tolmie[22] where Hunt CJ at CL had observed that in other cases it was known what evidence could be given by the missing witnesses but even so a permanent stay was not granted. In those cases an assessment was made of the possible significance of the evidence said to be unavailable. In the case of Tolmie it was not possible to assess what prejudice the accused might have suffered because nothing was known of what evidence the unavailable witnesses could have given.
[22] Unreported, CCA, NSW, No 60503 of 1994, 7 December 1994
In the present case witnesses have been identified by reference to the program for the pantomime, but it is not known whether any of the persons named could give relevant evidence. The applicant has not identified what, if any, evidence the persons named in the program might be able to give. I am not satisfied that the applicant has shown any way in which he is in fact likely to suffer prejudice.
In my opinion, it is not sufficient to point to a list of names and suggest that some of the persons named may be able to give evidence without identifying the nature of the evidence. On this application the onus rests with the applicant and he has not identified his particular difficulty in the way that the accused did in Littler.
There are however other matters. The defence never complained of the absence of statements from the persons associated with the production until the Rule 8 application was filed approximately 14 days prior to the date when the trial of the objective elements was listed for hearing. In my opinion, the defence should have raised the matter with the prosecution and requested that the other persons be interviewed before putting the absence of statements forward in the Rule 8 application as the basis for a permanent stay. The written submission of the applicant dated 29 August 2007 specifically named Mr A and Ms B.
On 10 September 2007 the investigating officer provided a further statement in which he stated that he commenced the investigation in June 2004 and as a result of his inquiries he had been unable to locate Mr A or Ms B. When the defence opened the application for a stay that was the state of knowledge with respect to Mr A and Ms B. However, in a way which was not explained, Mr A and Ms B were subsequently located and statements obtained from them shortly after 10 September 2007. Those statements now dispose of the argument of the applicant, at least with respect to Mr A and Ms B.
Additionally, in his statement, Mr A says that about two or three years ago he received a telephone call from Peter Leith (now Marshall), the adopted son and carer of the applicant, and that Mr Leith advised him that “terrible things were being said about Ric (the applicant)”. Mr Leith requested Mr A to speak to the lawyer for the applicant. After taking his own legal advice Mr A declined the request. A solicitor who was then acting for the applicant contacted him and he told her “it would not be in the best interest for Ric if you called me as a witness”. Mr A had no further contact with the case until a detective rang him on 10 September 2007.
I should mention that the applicant has changed his solicitor and counsel and I do not wish to imply any criticism of his present advisers. However, the statement of Mr A also answers the defence criticism that the prosecution had not properly investigated the matter, at least so far as Mr A is concerned.
As I have mentioned, the applicant has not identified the evidence that might possibly be given by members of the cast or other persons associated with the production who are named in the program or identified the precise way in which he might suffer prejudice. Presumptive prejudice is not sufficient. In this case, it is not possible to make an assessment of the evidence said to be unavailable, because no particular evidence has been identified.
It is also relevant that Peter Marshall spoke to Mr A whilst he was investigating the case on behalf of the applicant. In the circumstances, it was misleading to suggest that the lack of a prosecution statement from Mr A was the basis for a stay. The submission made on behalf of the applicant implied that he had not had access to Mr A. That implication was untrue.
In the circumstances, I do not attach any significance to the criticism of the police investigation and I do not accept that the police investigation provides a reason to grant a permanent stay of proceedings. Unlike the applicant in the case of Littler the applicant has not pointed to any particular difficulty in dealing with the allegations.
The position is the same with the complaint that there were no statements taken from persons associated with the television station where the offence in Count 7 is alleged to have occurred. The defence had made no prior request for statements from such persons. Nor has the defence identified the persons who might give evidence, what evidence may be given, or, particular difficulties in dealing with the allegations.
The requirement that the prosecution should interview witnesses is put into context by an example given by Cox J in Polyukhovic where his Honour said (at 10):
A fair trial is not the same as a perfect trial, and it is certainly not the case that a trial will necessarily be unfair in the relevant sense unless all possible witnesses are available to give evidence. In the typical bank robbery case depending upon the identification of a stranger, the Crown will usually called half a dozen people who saw what happened and claim to have seen something of the accused’s features. So far as I am aware no one has ever argued that, where identification is the critical issue, the proceeding should be stayed on the ground that there were obviously a good number of other people inside the bank or on the road outside who might well have observed something of the robber and possibly been able to assist the accused’s defence of mistaken identity but who simply left the scene afterwards and cannot now be traced. Again, it is by no means rare for an important known witness to die or disappear before trial.
The success of the prosecution will to some extent be reliant upon acceptance of the evidence of the complainant which is uncorroborated. Counsel for the applicant has impliedly attacked the credibility of the complainant. In my opinion the credibility of the complainant is not a reason for a permanent stay of the trial of the objective issues. It will of course be a relevant matter at the trial.
I do accept the evidence of Ms Wasley, the solicitor for the applicant, that she has experienced difficulty in obtaining instructions. She has provided evidence that she has had in excess of 50 telephone attendances upon the applicant and his adopted son and has attended on the applicant at his home on three occasions. She said that on many occasions he has appeared to understand her advice or the information that she had given to him, however in subsequent attendances his questions indicated that he had either not understood what had been said or was unable to recall the previous conversation. She concluded that it is not possible to take from him the rational and reliable instructions necessary for counsel properly to cross-examine the witnesses for the prosecution on the hearing of the trial of the objective facts. Those comments are not surprising. It was for reasons such as that the applicant satisfied the requirements of section 269H of the Criminal Law Consolidation Act 1935. The difficulty in obtaining instructions is a matter of concern. If this had been an application to stay a normal trial the evidence of Ms Wasley may have provided better reason for a permanent stay to be granted. However, the difficulty in obtaining instructions must be considered in the context of this particular application which is an application for a permanent stay of a trial of the objective elements of the offences pursuant to Part 8A. The authorities indicate that I must give weight to the fact that it is a hearing under a special Act.
Also the affidavit of Ms Wasley does not establish that she cannot obtain instructions at all; it only establishes that there are difficulties with obtaining instructions. The difficulty in obtaining instructions is one of the matters to be taken into account in the weighing process.
I reject the submission on behalf of the applicant that a permanent stay should be granted because the proceedings cannot serve a useful practical purpose. The alleged victims and the community have an interest in having the guilt or innocence of the applicant as to the objective elements of the alleged offences established. I refer again to the remarks of the High Court in Subramaniam.
I return to the weighing process and the question of whether matters raised in subparagraphs 12(vi), (vii) and (viii) of the particulars and the requirements “common humanity” require that the prosecution be stayed.
The applicant is 78 years of age. The seven counts which are alleged against him are alleged to have occurred between 1973 and 1975. The complainant did not raise the matter with the police until long after the offences were allegedly committed. I have found that the applicant is mentally unfit to stand trial. In addition, he suffers from a number of physical disabilities. His case is that he is more or less bedridden, although the prosecution disputes that. Notwithstanding that dispute, I find that he is a frail old man who suffers from significant mental and physical disabilities and that his solicitors have difficulty in obtaining instructions. If the prosecution had been commenced in a timely fashion the applicant would have been able to defend the allegations at a time when he was in possession of his faculties and his ability to defend the allegations would have been greater than it is now.
On the other hand, I must take into account that what is sought is a stay of the trial of the objective elements of the offence pursuant to Part 8A. I have found that the fresh matters which were raised on behalf of the applicant do not add any merit to the application for a permanent stay.
Two matters which are beyond dispute are the delay and the health problems of the applicant, but the applicant has not demonstrated any relevant change in his condition since the first application for a permanent stay was rejected. His health problems are addressed by the Part 8A procedure. Even though the procedure may not be perfect, Parliament has determined that a Part 8A hearing should be the way in which the prosecution of mentally unfit persons proceeds. As the High Court said in Subramaniam, one purpose of the special proceedings was to give a person unfit to be tried in an orthodox way an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the applicant of any kind may be brought to an end. The court said that another purpose of the Act was that the special hearing actually take place so that the victims be afforded an opportunity to see the form of justice, as necessarily imperfect as it may be in the circumstances, has been done.
In this case, as was the case in Subramaniam, the Act assumes as the basis for the application of Part 8A to the applicant the very mental unfitness upon which he would seek to escape its application. Section 269W and the requirement that the applicant is not required to attend the trial are intended by the Act to address some of the difficulties.
The case of Hakim can be distinguished on the basis that the trial which was sought to be stayed in that case was not a trial under a special act.
While the delay in prosecuting these offences is about 34 years, not all of that period can be attributed to delay by the complainant or the prosecuting authorities. For a large proportion of that time proceedings were barred by statute and it was not until the bar was removed that a prosecution became possible.
I do accept that the mental condition of the applicant will make it difficult for his advisers to obtain instructions. However, unlike Littler no particular difficulty has been identified in terms of the ultimate ability of the applicant to understand and defend the allegations. The mental condition of the applicant will make the task more difficult for his advisers, but that difficulty is addressed by the Part 8A procedure.
After undertaking the weighing process which is referred to in Walton and taking into account all of the matters which I have referred to above I have concluded that it would not be out of accord with common humanity or humanitarian grounds to allow a trial of the objective elements to proceed pursuant to Part 8A. That does not mean that the argument of the applicant is without merit. It simply means that after undertaking the weighing process the scales have come down in favour of allowing the trial of the objective elements under Part 8A to continue.
As the High Court emphasised in Subramaniam (at para 31), the hearing in question is a special hearing. I do not think that I am confined by Abdulla because in the present case the permanent stay is sought upon grounds other than the mental unfitness of the applicant alone. Also, cases such as Subramaniam, WRC and Sexton suggest that the common law power to stay cannot be excluded. In considering the application for a stay on common law principles one of the matters which I have taken into account is the fact that it was the mental unfitness of the applicant which resulted in the order under section 269H of the Criminal Law Consolidation Act 1935. After taking into account all the matters which I have mentioned, I do not think that the mental and physical unfitness of the applicant is something which would give rise to a permanent stay of proceedings either on humanitarian grounds or otherwise.

The argument presented on this application goes further than the first application for a stay, but in my opinion there is nothing in either the further medical evidence or the other arguments advanced by counsel which adds to the case of the applicant so as to justify the granting of a permanent stay of proceedings.
For these reasons the application was dismissed.