R v Payne, Graham - [2010] NSWDC 79

CITATION: R v Payne, Graham [2010] NSWDC 79

JUDGMENT DATE:
5 May 2010

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: The application for a stay of proceeding rejected.

CATCHWORDS: Criminal Law - Interlocutory Judgment - Application for permanent stay - brittle and fragile health situation of applicant - applicant charged May 2006 with sexual intercourse without consent - specially aggravated break, enter and commit serious indictable offence - crown case - complainant paying guest and hotle/motel with separate cabins - paying female guest asleep alone in cabin - publican using master key enters cabin - digitally penetrates complainant - first trial aborted May 2008 - applicant charged with encouraging publican employee to give false evidence thereby perverting the course of justice - bail refused - extremely serious health deterioration - hospitalisation - subsequent restoration of bail - servere poor prognosis for future - significance of permanent stay within framework of administration of criminal justice discussed - burden on applicant to satisfy court his medical condition such that it would be oppressive to him to try him and that the substantial public interest in having a trial of issues raised by these charges should be permanently set aside - failure to prove oppression - likely stress levels of accused during prospective trial not established - impact of potential stress on applicant's heart condition not established - steps available to ease applicant fatigue level discussed - arrangments made to ease fatigue levels - managing applicant's healh needs at trial discussed.

CASES CITED: Jago v District Court (NSW) (1989) 168 CLR 23
R v Wu 2002 NSWCCA 214
Littler (2001) 120 A Crim R 512 at 513 per Hodgson JA

PARTIES: Regina
Graham Leslie Payne

FILE NUMBER(S): 2006/5642

COUNSEL: Defence: G Thomas

SOLICITORS: Crown: Mr C Bailey

JUDGMENT

Application for stay of proceedings:

1. On 16th May 2006 Graham Leslie Payne, the applicant/accused, (hereafter the accused) was charged with having sexual intercourse with C.B. without her consent, knowing she was not consenting. He was also charged with breaking and entering a dwelling house, namely one of his rented cabins at Junction City Hotel in Burren Junction, and committing a serious indictable offence therein, namely the offence I earlier referred to, knowing that there was a person inside the cabin.

2. The matter proceeded as a trial on one prior occasion namely 7th May 2008. After four days of hearing a difficulty occurred with a Crown witness, Cecil Andrew Willis. He was unwilling to appear. Police contacted him. He ultimately made an allegation of some significance. This he later incorporated into a police statement dated 29th August 2008 in which he claimed the accused, his then employer, pressured him to give in evidence an untrue account of events concerning the alleged sexual assault and break-in favourable to the accused. In the light of those allegations, Judge Charteris S.C., the trial judge, aborted the trial, remanded the accused into custody. The accused suffered a heart attack and was taken to the Orange Base Hospital. At some point the accused must have been released to bail, probably on account of his medical condition. He appears off bail in these proceedings.

3. A third ex-officio charge has been added to the indictment reflecting this new allegation, namely that between 15th March 2006 and 7th May 2008 at Burren Junction the accused encouraged Cecil Willis to give false evidence at court intending thereby to pervert the course of justice. There was no application by defence for refusal of leave to amend the indictment, nor any objection as to the inclusion of an attempt to pervert the course of justice charge into the indictment charging sexual assault.

4. All charges are of a serious character. The original two touch upon the integrity of a woman’s privacy, not only to her body, but to the security of the accommodation she had be rented and of herself within that accommodation. In the event of a conviction for them, the accused in being held accountable for them would most certainly be facing a term of full time custody. The third ex officio charge alleges conduct that strikes at the very administration of justice itself. In the event of a conviction, it too would require the accused to account for his conduct by a term of imprisonment. It is also important to remember all charges are vigorously denied.

5. The accused is not a well man. The nature and extent of his injury will need to be reviewed in some detail later in this judgement. On the 16th October 2009 a notice of motion was filed with the Court’s Registry in Dubbo on behalf of the accused seeking that the trial of him be permanently stayed from proceeding. Shortly put, the application is based upon physical injuries suffered by the accused, which result in his suffering shortness of breath, a possible loss of consciousness, and risk of a recurrence of an existing cardiac condition placing his health in jeopardy. It is claimed that a trial in Dubbo would placed him at further risk. The Notice of Motion was litigated before me at Dubbo on 12th February 2010.

6. The court’s task is to determine whether in the circumstances as postulated by the accused, the trial should be permanently stayed. That requires the court to determine whether the evidence before it supports the defence contention that the accused’s, ill health is such that any trial of the issues between the prosecution and defence would lose the required essential quality of being a fair trial according to law. The starting point in determining such an application requires an acceptance of the part Courts play in the processes of justice, and in particular justice in criminal matters.

The question of purpose and process

7. When a permanent stay is sought, it is important to bear in mind the purpose that the criminal law and trial process serve in our community and the essential qualities required in the criminal law process. It is only against a proper understanding of both the purposes and qualities of the process that a proper appreciation can be made of the significance of a permanent stay and the limited circumstances in which one can be given.

8. The protection of individuals from harm by others has long been recognised as the responsibility of lawful government. Courts of law are established as one arm of government to administer justice in the community. The criminal law, in particular, is harnessed so that all may well know the law as administered by the Courts will be administered to protect the safety of each individual within its jurisdiction.

9. Where a person makes complaint that the provisions of the criminal statutes have been breached by way of an offence committed against him/her by another, police investigate that complaint. Where, in the opinion of experienced police, there is sufficient evidence available in support of the complaint made, police are duty bound to charge the alleged perpetrator with charges. Those charges are the initiating mechanism whereby the prosecution through the criminal law trial process on behalf of the community, may advance evidence in support of the allegation; and the defence, on behalf of an accused, may have an opportunity to answer the allegation if an adequate answer is available. It is through this process that an accused is required to become accountable for his transgressions if they are proved, or be discharged from them with presumptions of innocence fully intact if they remain unproved.

10. In the case of serious charges, there is a filter system so that flawed charges, or those with inadequate evidence in support of the allegations made, are filtered out. It is in this way that those charged with serious offences are early discharged from answering allegations where the prosecution has no chance of success.

11. In this case a judicial officer, acting administratively, has determined, in respect of the two initial charges before the court that the evidence is of such a quality that it is capable of satisfying a jury beyond reasonable doubt of the allegations made. That is to say that in respect of the two original charges the applicant has been committed for trial, in the event those allegations remain unanswered, the evidence of the prosecution is capable of satisfying a jury of his guilt. In the case of the ex officio charge, a commissioned or otherwise authorised Crown prosecutor has fulfilled the functions of the ancient grand jury to determine whether a bill of indictment should be found, and determined that one should be found. As with the other charges, in the event this allegation remains unanswered, the evidence of the prosecution is capable of satisfying a jury of guilt.

12. The law has no interest in punishing those who are not guilty of crime. But its underlying purpose in protecting the community is to ensure that all who are guilty of offences must be held accountable for them.

13. To sift out those who are guilty from those who are not guilty, there is, subject to appeal, a final filter system – namely the criminal trial. A person cannot be found guilty unless he admits his guilt in court; or a properly constituted tribunal of the court, at trial of the issues between the parties, determines on admissible evidence that his guilt has been established beyond a reasonable doubt.

14. Even though he has been committed for trial, assuming he does not enter pleas of guilty, Graham Payne is to be presumed innocent. In the absence of a guilty plea, it is only the proving of guilt through the trial process that permits a court to hold a transgressor accountable.

15. In this case Graham Payne seeks that the purposes of universal accounting to the criminal law required of all others charged with criminal offences, for him be abandoned and its processes be stayed on account of his health. It is only in a rare case the entire purpose of the criminal law will be abandoned and the process stayed in the face of a judicial officer determining that the evidence is capable of satisfying a jury beyond reasonable doubt of guilt.

16. The remedy sought by the accused is a remedy of last resort, used only in exceptional circumstances where any trial of the issues would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process (Littler (2001) 120 A Crim R 512 at 513 per Hodgson JA)

17. It is only when a trial loses, or will lose that essential quality that it can be asserted the process no longer serves the established purpose of the criminal law. The onus, which is said to be a heavy onus, is placed upon the applicant accused to satisfy the court, any trial of him would lose its required essential quality of being a fair trial according to law. ). That is because the central precept of criminal law processes is that no person shall be convicted of a crime otherwise than after a fair trial according to law. A conviction cannot stand if irregular or prejudicial occurrence has permeated or affected proceedings to such an extent that the overall trial has lost its character according to law (Jago v The District Court of New South Wales 168 CLR 23 at 57 per Deane J).

The Crown Allegations

18. C.B. was pursuing seasonal work on nearby properties in Burren Junction. She was staying at the Junction City Hotel in one of its cabins. The accused at that time was involved in the management and perhaps the ownership of the pub. On Tuesday night and into Wednesday morning she had been drinking moderately at the Pub. Until closing time she did not interact with the accused, who on the Crown case was present in the Hotel that night.

19. At closing time, the accused invited the complainant and two other females to join him for a last drink, which he provided. Some ten minutes later the complainant, with the other women left the accused and Hotel. The complainant walked to her cabin, situated at the rear of the Hotel. She closed the curtains and locked the only door. Dressed in a crop top and underpants she went to bed and to sleep. She awoke to the feeling of fingers moving back and forth inside her vagina. On the Crown case the accused was laying in the bed, under the sheets and behind the complainant who was lying on her side.

20. She jumped immediately from the bed saw and identified the accused in the ambient light, dressed and immediately made her way to her two female companions in another cabin and complained. That group then moved to another cabin where two males were sleeping. They were roused and told of the complainant’s allegations. She attended the local police station to report the matter. Police returned to her cabin where they secured it as a crime scene. While waiting for police she used the toilet. In so doing she noted her underpants were inside out and back to front, both being different from their state when she retired to bed.

21. The complainant was taken to Narrabri Hospital where a SAIK was completed.

22. The Crown argues the alleged coaching of the witness Cecil Willis has strengthened its case against the accused. If Willis’s evidence is accepted, it would certainly undermine the accused’s credit. Whether it would rise to a level to reflect a consciousness of guilt will be a matter to be determined at trial. If there is to be a legal argument, it would add to the length of the crime by perhaps half a day. I anticipate there may also be an argument about severing from the indictment the charge arising out of Willis’s evidence.

Length of trial

23. Any estimate of a trial is at best an uncertain science. There are two criminal incidents the Crown cases are centred around – one episode of alleged unlawful sexual contact with one adult complainant after unlawful entry into her cabin; and one course of conduct related to the alleged coaching of the witness Willis. Voir Dire Exh 8 is the Indictable Brief of Evidence Contents. It sets out the various statements, reports and other documents disclosed to the defence upon which the Crown may rely during a trial. There are 36 items referred to. Defence counsel estimate the trial will take 10 normal sitting days. The Crown, as I recall did not dispute that figure, but gave no estimate.

24. Frankly, most sexual assault trials containing allegations of the kind present here are resolved within 3 or 4 days at the outside. The earlier aborted trial is said to have taken 4 days. How much of that trial was diverted by the issues surrounding the witness Willis is not clear – but I have imagined it may have taken as much as a day. I have not been told whether the evidence of the complainant was recorded, as it should have been if the facilities existed in Coonamble at that time. For abundant caution I have assumed no DVD of her evidence exists for the purposes of considering the length of any future trial. But the issues raised by her evidence would have been distilled and could be focused upon the more quickly. There will be some additional cross examination if any of her evidence in a new trial is inconsistent with evidence she gave before the jury and Judge Charteris.

25. The addition of the attempt to pervert the course of justice charge will require an additional area of cross-examination of a witness who otherwise would have played a minor, and probably uncontentious part in the sexual assault trial. Even so, the resolution of that trial will be word against word, should the accused choose to give evidence. If he does so chose, that decision will lengthen the trial.

26. As best I can determine, the issues he will need to address are confined to challenging the complainant’s account of sexual intercourse, and challenging Willis’s account of unlawful coaching. Sitting normal court hours this trial should, on my estimate take no more than 5 or 6 normal sitting days. If the parties were prepared to discuss uncontested issues with a view to shortening the trial, it could take less.

The Medical Evidence of the Accused’s Condition

Dr Mark Adams called in the Accused’s case

27. One of the accused’s treating doctors in Dr Mark Adams, Senior Staff Cardiologist of The Sydney Heart Centre, Royal Prince Alfred Hospital. His qualifications and expertise were not in dispute. Dr Adams gave his current diagnosis as at 2nd October 2009. He found the accused had experienced a bacterial pericarditis secondary to an infected coronary stent requiring prolonged antibiotic treatment for more than a year. The first six weeks of that treatment had required hospitalisation. The accused developed a constrictive pericarditis requiring open-heart bypass surgery and the removal of his pericardium. His diagnosis includes a recurrence of constructive pericarditis – a condition Dr Adams thought unlikely to change in the foreseeable future. Doctor’s prognosis defined the condition as extremely poor and unlikely to offer good long-term improvement of the symptoms.

28. Dr Adams noted the effects of his condition is likely to reduce his ability to cope with activities of daily living and simple tasks like bending over cause quite marked dizziness. Ability to travel long distances is limited, but the accused has been able to travel without too much problem to Sydney for medical appointments. The accused’s capacity to sit for long periods is compromised. However, the accused mental state is unaffected, although there was some reservation about the accused’s capacity to concentrate.

29. In his report of the 2nd October 2009 Dr Adams expressed concern about the accused’s capacity to sit in court 5 hours daily for a prolonged number of days. Any difficulty he anticipated would become manifest with shortness of breath or loss of consciousness. Doctor recommended that if a trial went ahead it should be in an area where there is readily accessible medical care and in particular a cardiac team. He noted Dubbo Hospital was limited in the support it offered, and of the country regions preferred Orange Base Hospital as able to offer better facilities. Dr Adams ultimate preferences were Sydney or Newcastle where the facilities are much better. (I note the accused’s solicitors are located in Newcastle, but whether he has any other connection with Newcastle was not explored in evidence.)

30. In a report of 8th December 2009 Dr Adams noted the accused was much the same, but added problems with sleeping to his symptoms. Dr Adams recommended the accused have a sleep review, which does not appear to have been done. The accused’s sleeping problems were also noted by Dr Quirk in the context of shortness of breath through the night, but otherwise played no other part in the evidence.

31. Dr Adams was required for cross-examination. His evidence was received in Dubbo District Court on 12th February 2010 via an AVL link from the Public Defenders’ (Carl Shannon) Chambers in Sydney. Mr Thomas, counsel for the accused, took opportunity to adduce further evidence in chief. Much of that evidence related to a longitudinal history of the accused’s heart illness. He suffers coronary artery disease for which he had stents placed in his coronary artery. One became infected leading to a serious cardiac condition of staphylococcal inter-cardious. Dr Adams described this condition as “incredibly serious” but noted the accused did “incredibly well”.

32. This is a condition with a greater than 50% mortality. The accused’s survival left him with a very fibrose pericardium, which has the effect of squashing or containing the heart so that it can’t contract and fill properly. The surgery stripped away this fibrose pericardium and also included bypass surgery. He improved for a number of months, but has now regressed and has recurrent constriction in his pericardium. There appears a general consensus among the surgeons that there is nothing more surgery can offer, and the medical future is one of controlling symptoms, looking for palliative and symptomatic management rather than focusing on curative issues.

33. Dr Adams agreed with defence counsel the condition is very rare; very, very serious and potentially fatal. He remarked it is amazing the accused has survived. He is on an array of medication including oral antibiotics, which themselves have a toxic side effect. He takes medication twice daily. The doctors are concerned about fluid retention, which is exacerbated by the accused’s gaining weight through lack of exercise. In his oral evidence Dr Adams reiterated that the main thing he saw with the accused’s symptoms was limitation of activity and he really seems to have trouble sitting for any length of time without becoming short of breath or tired or agitated.

34. When asked whether stress was a factor that needed to be taken into account, Dr Adams replied:

35. In answer to another question on stress relating to the matters bringing the accused before the court Dr Adams said:

Whether that would actually happen or not I – you know it’s pure speculation, I couldn’t really tell.

36. In the course of cross-examination, Mr Bailey, trial advocate for the Crown, sought guidance as to whether there were steps the court could take to minimise potential for adverse effect. Dr Adams conceded,

…Certainly some things could be done that would improve things. Well I suppose not being in the sort of court environment that’s quite so stressful would be one thing, or if the periods of time that he was needed to sit there were much, much less. What sort of, one of the main things that really concerns me is prolonged periods of really being grilled and how this might impact on his health. But I assume just even, even coming to court as he has today must be quite stressful and difficult to cope with given his condition.

37. Not surprisingly it appeared the doctor envisaged the height of stress would arise in circumstances where the accused, should he give evidence, was cross-examined, particularly in circumstances where that cross-examination was for lengthy sessions. The doctor also opined the length of the trial would be something he would worry about. He said he would be amazed if the accused was able to go though ten days of trial in court without passing out or getting into real difficulties breathing or with his other symptoms. Doctor Adams recommended rather than the accused sitting outside the courtroom on hard benches during breaks that he have the ability to lie down or to rest completely, which would make it a lot easier for the accused to cope.

38. I asked the doctor in the event he was at risk, were there any symptoms, which would announce themselves so that he could indicate he was in some difficulty. Doctor thought there would be some symptoms announcing he was getting worse, which would be indicated, he thought through dizziness or increasing shortness of breath. He cautioned once symptoms started, just sitting down or lying down and stopping might not be enough to terminate them. He predicted hospital attendance would then be required.

39. Asked in re-examination a question I would have thought should have been asked in chief, namely whether the accused was fit to attend court as a defendant in criminal proceedings; Dr Adams said:

it’s hard for me to judge the amount of stress that he would be under in that situation and how that might impact on him.

So I‘d say no but if, if things were less stressful, perhaps he could

Dr Christopher Quirk gives evidence for the Prosecution

40. To suit the convenience of the doctors, and to keep access to the AVL link, the parties were allowed to call evidence from Dr Christopher Quirk, who had been qualified by the Crown. Dr Quirk saw the accused on 20th August 2009. Dr Quirk had reviewed all of the medical correspondence supplied from RPA, Orange Health Service and Strathfield Private Hospital and his psychiatric reports. None of that correspondence, nor the psychiatric reports are before the Court. At their initial meeting Dr Quirk obtained a full medical history from the accused, conducted a clinical examination of him and performed a resting echocardiogram to evaluate the accused cardiac function.

41. Doctor reviewed the accused’s symptoms many of which are consistent with those Dr Adams was treating. However, on the evidence before me it appears one symptom Dr Quirk was worried about, a suspected sepsis (see below), was not a matter bothering the accused when Dr Adams did his review a month later. If Dr Quirk was correct and the sepsis existed, the antibiotics may well have resolved it by the time of Dr Adam’s review.

42. Dr Quirk’s findings are set out in a report of 21st August 2009. His diagnosis is that the accused present health is extremely poor. The accused has clinical features to suggest a recurrence of pericardial constriction. Doctor was also suspicious that the accused had a disease in his coronary artery bypass grafts, accounting for some angina. Doctor was concerned about his fevers and sweats, particularly in the presence of previous coronary artery stent sepsis and MRSA. Doctor was concerned that the accused may have ongoing sepsis despite his antibiotic cover. He thought the accused’s condition was deteriorating.

43. His rationale for finding the accused’s prognosis poor related to the ongoing constriction without corrective services. He noted if there was ongoing infection in his stent or pericardium, there was a high mortality rate exceeding 50% from such conditions. He did not think the accused would live longer than the medial life expectancy. I note the accused was born in mid 1957 and is currently 52 years old.

44. Dr Quirk was also required for cross-examination. As with Dr Adams, Dr Quirk was also unfamiliar with the demands participation in a criminal trial were like to make upon an accused. He also limited his assessment to the accused as he presented in August 2009 rather than in February 2010.

45. When apprised, in his evidence in chief, of the court sitting times Dr Quirk’s response was that he could not see a lot of reason why the accused would not be able to sit and listen and give basic instructions as required, based upon his cardiac health. Earlier in the answer he had observed the accused had a lot of physical compromise with regards to breathlessness and his general cardiac status of angina.

46. Dr Quirk’s focus was then directed to issues of stress arising through advocacy method of trial and the potential for imprisonment. He thought that potential outcomes would have a different impact on his ability to withstand stress based upon his health. Dr Quirk did not feel he had enough experience to say what the outcomes may involve. What Dr Quirk did opine is that:

47. Seeking to simplify a question asked by Mr Bailey, I asked: “What you’re really being asked doctor, it seems to me, is a man who may be used to stress, how will he handle stress now?” Dr Quirk replied:

48. In cross-examination by Mr Thomas, Dr Quirk agreed that by comparison with Dr Adams he had one contact with the accused at “one point on the curve without knowing which direction his general health [was] going.” He agreed he was taken aback by the accused’s poor medical wellbeing. He regarded him as very seriously ill and with a poor prognosis. Dr Quirk’s evidence was the accused was at risk of death and accepted he was not a candidate for surgery because the risk is too great.

49. Even so, he believed, the accused from a physical point of view would be able to withstand a day in court. He couldn’t offer any guarantee that after 10 days the toll might not be a little too much for him, but from the mental point of view the doctor didn’t see any reason why he could not sit and be questioned and expected to answer in an appropriate fashion.

50. Dr Quirk was asked whether he would be surprised if the accused passed away “this afternoon” – referring to after a day in court. Doctor Quirk conceded he would not be altogether surprised. However, he would attribute that event to the natural history of his condition rather than the events of the day. Mr Thomas posed to the Doctor these questions and received these answers:

Q. If your secretary had called and told you that the next of kin had reported that he was in the witness box being cross-examined and died, would that surprise you at all?
A. No. I would be no more surprised than if he was sitting at home or died in his sleep.

51. Mr Thomas posed that the accused had a “particularly weak heart”. This was not a proposition the Doctor agreed with. His evidence was:

52. Earlier in the cross-examination Mr Thomas had canvassed whether there was any medication, within his current medications, the accused could take in case of a deterioration of his condition or emergency. Dr Quirk’s evidence was that the most likely thing that would deteriorate in someone with the accused’s condition is heart failure or fluid retention. Either of those conditions would be treated with Lasix. If there was an ongoing inflammation of the pericardium, that would be treated on an intermittent basis with Prednisone. Both of which are medications the accused is currently on.

The Accused’s Evidence

53. The accused was called to give evidence in support of the application. He described himself as unemployed. His evidence was he was neither the publican nor the licensee of The Junction Hotel. Although he had run an hotel in the past, when he became unfit his wife took over all those duties. There were times when he would do a walk about and would pass on information to his wife – but she was the person who managed the pub.

54. His daily routine was to comedown stairs for breakfast at about 11:30am. When finished he would go upstairs and watch TV, come back downstairs in the afternoon at about 5pm and sit in the bar. He doesn’t work the bar, he doesn’t do any labouring work. This has been his situation since the open-heart surgery in November 2008.

55. As to his ability to cope, the accused evidence is he becomes stressful, and had visited a psychiatrist on four occasions.

56. He was challenged in cross-examination as to his role in the management of the pub. Whether or not he is involved in the management of the pub, there are events arising from the drunken behaviour of others that must be of a stressful nature to him occurring there. He has had to ring the local police to deal with them. He appears to have functioned through those stressful events without added impact upon his current medical situation.

Observations of the Accused in Court

57. In court observations often yield inaccurate readings of situations. This is a proposition I have come to understand better the longer I sit. Nonetheless, seeking to be cautious in my findings, I have, as would be expected, relied upon them.

58. Throughout the hearing, which did not occupy a full day, but certainly a substantial portion of it, the accused remained present. The accused was present for the evidence received via AVL from the doctors, for the giving of his own evidence and during submissions. He appeared aware and engaged in proceedings. In so saying, I am not suggesting he was continually participating in giving instructions – simply he was aware of what was happening and appreciative of whether it advanced or hindered his current application.

59. He gave his evidence competently, and parried questions asked in cross-examination well. He presented as strong, forceful and confident when in the witness box. I noted no impairment in his concentration in the witness box, nor did I notice him appearing distracted throughout the day. As best I could tell he was never unduly flustered, or stressed. Nor did his physical condition deteriorate in any appreciable way. I noted, as best one can, his breathing patterns during the hearing, particularly during his evidence. I was not able to detect any spike in his breathing rate. Nor, so far as I could tell was there any change in his complexion or composure.

Defence Submissions

60. Mr Thomas argued this was one of the exceptional cases where a stay on medical grounds was demonstrated by the evidence. He argued no reasonable direction can be made as to venue; modifying sitting hours, or providing resources that can change or minimise the risks to the accused of holding a trial. R v Woo (?) 2002 NSWCCA ----. (The only case that appears to fit the parameters I have noted down is R v Wu 2002 NSWCCA 214 which is a sentence appeal and involves entirely unrelated issues.)

61. This was a case where the medical circumstances and health issues only were of consideration. The defence relied upon evidence from the experts and from the accused on these topics. The experts agreed on much, but on the issue of whether or not the accused should be required to undergo the stress of a trial, the treating Doctor, Dr Adams should be preferred. His descriptions of the accused’s medical condition were compelling: rare condition, very serious condition, poor prognosis; on-going deterioration, no prospect of future surgical intervention. Dr Quirk was “taken aback” when he saw the accused.

62. The defence argued the medical issue that was compelling was not one of hypertension, but one of the impacts of a constriction on the heart. In the face of the mental stress upon an accused generated by a trial it becomes oppressive to prosecute him in the face of the dangerousness of serious deterioration of his medical condition. The accused’s illness is not his fault.

63. The Crown submitted there was substantial public interest in having a trial of the issues, particularly as both charges raise matters of importance in terms of accountability.

64. In respect of the submission that the court could make no orders that suited the needs of the trial, the Crown submission is that is not so. The Court can make particular orders and special arrangements and has done so in the past.

65. The Crown submission is that both doctors gave evidence that the accused is able do deal with a trial.

The principles to be applied

66. Jago v District Court (NSW) (1989) 168 CLR 23 is the seminal case in which the High Court of Australia reviewed the principles relating to the permanent staying of a criminal trial. For the purposes of this judgment I take the citations appearing below from Chief Justice Mason’s judgment in that case, from the leading judgment of Adams J in Littler (ante)

“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 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.

67. The accused’s case is that in asserting his right to be tried he is endangering his life. The onus is upon the accused to satisfy the court on the balance of probabilities that any trial of him upon the charges would lose its required essential quality of being a fair trial according to law.

68. Where the exercising of the right to trial became oppressive because of the precarious health condition of an accused, or such an affront to the community’s sense of common humanity, the resulting trial would be one that would lose its required essential quality of being a fair trial according to law.

69. Where there is a reasonable likelihood that the trial process will contribute to the endangerment of life of an ill litigant, the trial would become one that was oppressive or such an affront to the community’s sense of common humanity as to lose its required essential quality of being a fair trial according to law. That is the applicant’s case here. I have not been asked to consider deterioration of health. The issue that has been pressed in this case is the survival of the accused. The propositions I have formulated are based solely upon the issues before the court.

70. Rareness of disease or illness on its own is not enough to establish the endangerment of life in the circumstances of an accused exercising his right to be tried..

71. High potential of, or close proximity of death on its own is not enough to establish the trial process would contribute to the endangerment of life. Persons suffering some forms of cancer, mesothelioma, aids or heart complaints, to name but a few, have high potential for early and/or sudden morality. In the absence of a reasonable likelihood that the trial process itself would contribute to endangerment of life, the argument for a stay of the trial process would not be made out. Indeed, many are the cases, more so in the civil jurisdictions, where litigants in close proximity to death have chosen to fight sustained battles in courts. Witnesses in fragile or brittle health, in accordance with proper principle, have likewise been compelled to attend court to give evidence.

72. I reject Mr Thomas’s submission that this is a case where the medical circumstances and health issues only, were of consideration. The task here is one of determining whether the accused has satisfied the onus of proving his medical circumstances are such that it would be oppressive to try him and that the substantial public interest in having a trial of the issues raised by the charges in the indictment should be set aside and the process and procedures of the criminal law stayed.

73. As will be shortly apparent, I have also reject the defence submission that it is not open to the court to adapt the trial processes and procedures to minimise any risks of endangerment.

Resolution

74. The hub of the accused’s application is the impact upon him of the stress related to being an accused in a criminal trial is so great that his already fragile health situation would deteriorate to a point where his very life would be endangered. This is a proposition the defence has failed to prove. There are two major areas of failure in establishing the claimed oppression.

75. What the court is concerned with is not some general notion of stress upon that class of persons qualifying as accused persons. While I can accept there may well be some level of stress any accused involved in a criminal trial would experience, some accused are prone to stress more than others. The court is concerned with this particular accused’s stress levels, and what activates or intensifies them. A witness who could best be qualified to speak about the accused’s stress levels is a psychiatrist – either one who has treated him for stress, if it be the case, or a forensic psychiatrist or psychologist who has assessed him for symptoms of stress. Although the accused has seen a psychiatrist on four occasions, neither the purpose of those consultations nor the results were disclosed in evidence. Nor was any forensic psychiatrist or psychologist called to detail the accused’s particular situation so far as his stress levels are concerned and their likely impact upon his heart problems.

76. Unlike other superior courts, obtaining transcripts of evidence in the District Court is not always easy. That is especially so for country courts. At this point I do not have any transcription of the accused’s evidence. Relying only upon my own notes of his evidence, I have no record of his being questioned either in chief or in cross-examination as to the stress levels he faced on the day of the application, or issues of stress relating to the prospects of being tried. Nor was there any evidence as to levels of stress he experienced in the trial of the issues before Judge Charteris.

77. I do not mean to dismiss the heart attack he experienced in May 2008 after the trial and refusal of bail, but I have no medical or personal evidence as to what brought on that heart attack, whether it was caused by any action related to the trial, or to the subsequent orders made by Judge Charteris, or to a natural (if I can put it that way) progression of his medical condition. Given his very precarious health – and the attitude expressed by Dr Quirk in cross-examination as to the accused’s proximity to death, I am not prepared to draw any conclusion as to the cause of the heart attack, one way or the other.

78. Next, the very premise upon which the application is founded – stress will impact upon his heart condition – has not been established to the required onus. Dr Adams in chief noted, “the main thing he saw with the accused’s symptoms was limitation of activity”. His evidence was “physical stress predominately is the worst thing”. On mental stress he was much more equivocal “In terms of mental stress, I suppose that’s not good either.” and “I’ve certainly advised him on numerous occasions to try and minimise the stress in his daily life in terms of his business ventures and personal interactions… they do need to be controlled to an extent.” and “ with prolonged period of stress like that he may well decompensate.” and finally “ whether that would actually happen or not I – you know it’s pure speculation, I couldn’t really tell.”

79. I have already highlighted relevant portions of Dr Quirk’s evidence. He could not see reason, as matters stood when he examined the accused, why the accused would not be able to sit, listen and give basic instructions as required, based upon his cardiac health. As with Dr Adams, he saw the primary limitations of the accused condition as “affect[ing] one’s ability to withstand physical stress.” He accepted the accused ability to withstand mental stress would be reduced compared with a normal person, but opined it would be difficult to quantify by how much. That he though would depend upon the accused inherent ability to deal with stress. I note there has been some evidence of the accused dealing with management issues in his business life, suggesting he manages himself well enough. There has been no evidence of any inherent disability of the accused to deal with stress.

80. Dr Quirk was of the view that based upon his physical condition there wasn’t any reason the accused should not be able to handle the stress. He was concerned about the accused fatiguing, but that is something that can be accommodated by arrangements made to the court’s procedures to mitigate the fatigue. Dr Quirk distinguished between the strength of the accused’s heart – which he described as very strong – and the accused’s heart condition (constriction), which inhibits the heart from working effectively. He noted the condition primarily reduces physical capacity; his opinion was the condition was not going to be acutely aggravated by stress.

81. The evidence as reviewed does not establish the essential premise required for the accused’s application, namely that his heart condition would be adversely impacted by stress of a trial. Thus on the two crucial issues – establishing this accused’s stress levels would be raised to levels that would acutely impact upon his health, and secondly that stress levels would adversely impact upon a candidate suffering constrictive pericarditis at the level experienced by the accused, the defence has failed to satisfy the required onus of proof. The defence application for a stay must be dismissed.

82. Nonetheless the court must do what it can to minimise the fatigue factor. With that will also come, hopefully some minimisation of the stress factor. Dr Adams sought that the trial be held at a venue close to adequate hospital facilities. In those circumstances the trial should be held in one of these venues: Orange, Newcastle or Sydney.

83. Still addressing the fatigue factor, the trial should have limited hours by comparison with normal daily sittings. No ruling of mine on procedure can bind any other judge of this court. However, to the judge presiding at the trial, in light of the evidence before me from the two doctors, I recommend each sitting day should not commence before 10:30am, that there should be an half-hour morning tea adjournment and the usual one hour luncheon adjournment. I recommend each day’s proceedings conclude at 3:15pm. Those recommendations accommodate to some extent Dr Adam’s concern about the physical strain of the accused sitting for extended periods.

84. A room in the court complex, such as a remote witness room, or an interview room, should be allocated to the accused for the duration of the trial, where some portable facilities may be imported by him to allow him to lie down, or at very least recline, during adjournment periods in some privacy.

85. Given the modified sitting hours I have recommended, the trial will last longer than a week. I recommend only 4 days per week for the duration of the trial, that is, that Friday of each week should be a lay-day. That arrangement would permit the accused to physically rest for 3 days each week during the trial’s currency.

86. Should the accused, as is his right, choose to give evidence, my recommendation is that he be given 20 minute adjournments every 40 minutes, making 3 sessions in the morning and two in the afternoon.

Managing the Accused’s Health at Trial

87. The court also expects, in the event the accused should suffer a deterioration in physical health during the trial, that the matter would be raised, firstly, with his legal team and, immediately thereafter, by them, with the court. If appropriate, a pause in proceedings can be arranged. What is speculative and conjecture on the part of the defence now may become a firm diagnosis during the trial. If such be the case, appropriate applications can be made and dealt with.

88. With the provisions I have set out, I would not anticipate any deterioration, whether caused by the trial or for other reasons, in the accused’s physical condition. It should not be forgotten the accused’s health is precarious – trial or no trial. For that reason, it may be useful to remind all concerned in the trial of the symptoms Dr Adams identified as indicative of early signs of physical fatigue and reduced oxygen levels: shortness of breath, rapid breathing; low blood pressure, dizziness, impaired level of consciousness, blacking out. I note Dr Adam’s evidence that in his opinion once symptoms started he predicted hospital attendance would then be required.

89. Dr Quirk’s was asked about medication in circumstances of a “deterioration in the accused condition or emergency”. A question posed with those two propositions linked by “or”, is to be understood as a question about a “serious” deterioration in the accused condition. Dr Quirk’s opinion was the most likely thing that would deteriorate in the accused’s position would be fluid retention, heart failure, or ongoing inflammation of the pericardium. All were treatable with current medications the accused is taking – although I emphasise again Dr Adam’s caution that the accused, in those circumstances, should seek hospital attention.

A Second Notice of Motion is Argued

90. On 4th May 2010, the accused sought leave to re-open his evidence to tender two reports written by Dr Adams during the adjournment period. The Crown did not object to the re-opening of evidence, or the tender of the two reports contained in the Affidavit of Paul O’Sullivan, 30th April 2010. It has now been marked as an Exhibit on the Voir Dire. The judgment in the initial application is to be handed down on 5th May (tomorrow as I write). To that end I had already completed all of the above paragraphs to paragraph 89. For reasons I shall shortly give neither report, nor the two together divert me from my initial decision that the application for stay must be rejected. But both do fortify my view that appropriate provisions need to be made to minimise fatigue. I am also fortified in my view of the need for all to observe the accused health and actions during the trial to minimise risk of fatigue.

91. On 16th March last Dr Adams reviewed the accused in the Sydney Heart Centre at RPA. Dr Adams noted a history of the accused feeling worse than he has in the last few weeks. Doctor also noted there were few objective measures that were possible to elicit. Blood pressure 150/80 was in the normal range, but with a 20mmHg paradox. Otherwise there were no new clinical findings. He noted two – or more realistically one “concerning symptoms” of presyncope and syncope needing further investigations. However, his findings did not greatly vary the opinion which he expressed under oath on 12th February 2010.

92. Doctor referred to a recent admission to Singleton Hospital, on 13th February where the accused was presyncopal. The symptoms were, unwell, sweaty and short of breath, flushed, with some associated pain and shortness of breath. There was a raised white cell count, but no diagnostic changes on this ECG or blood tests. On that occasion he was discharged against medical advice. Given loss of consciousness is one of the symptoms the accused must be vigilant about, his decision to leave hospital when he was possible presyncopal is puzzling. I can only assume the condition had satisfactorily settled with Arginine.

93. Dr Adams was unsure whether the attack was precipitated by the stress of his Court appearance the previous day. Seeking to apply as best I can, my understanding of the effects of the medical evidence earlier given by both doctors, one could not rule out the fatigue caused by travelling to Dubbo from Muswellbrook, and returning to Muswellbrook in the short time span done by the accused may have been the cause of his admission to Singleton Hospital.. My understanding is the accused motored both ways. That does not appear to be a matter to which Dr Adams turned his considerations.

94. Dr Adams reviewed the accused again on 6th April, three weeks after his last review. Again this review was at the Sydney Heart Centre. Doctor noted some deterioration.. His heart rate was 110; his blood pressure was 160/80. The paradox was more marked on this occasion coming in at 30mmHg. Doctor regarded the symptoms probably more due to constriction rather than any arrhythmic problem. I sense the doctor was pleased that arrhythmia had not developed – but was frustrated that the deterioration – modest as it was – could not be addressed because the constriction is not really treatable either surgically or medically.

95. Neither of these reports advances the accused case that the trial processes would contribute to life endangerment. So far as the February admission is concerned, one can’t rule out fatigue as a consequence of many hours motoring to and from Dubbo. Both reviews were done in Sydney, no doubt after the accused had travelled down from Muswellbrook. There was nothing in the March review that caused Dr Adams any concern other than matters arising from his admission to Singleton Hospital. At the April review there had been some deterioration. My sense is the deterioration was modest. Dr Adams did not seek to excite any view different from those he had expressed in evidence on 12th February last.

96. I confirm the application for stay will be rejected.

97. Formal orders:

The application for a stay of proceeding as sought in the accused’s Notice of Motion is rejected.
The matter is listed in today’s call-over before the Chief Judge to set a trial date for the matter to be heard at Sydney, Newcastle, or Orange.
Once a trial judge has been allocated this matter he or she should be provided by the Crown with a copy of my reasons, including my recommendations.

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R v Payne, Graham [2010] NSWDC 79

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Connellan v Murphy [2017] VSCA 116

CITATION:	R v Payne, Graham [2010] NSWDC 79
JUDGMENT DATE:	5 May 2010
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	The application for a stay of proceeding rejected.
CATCHWORDS:	Criminal Law - Interlocutory Judgment - Application for permanent stay - brittle and fragile health situation of applicant - applicant charged May 2006 with sexual intercourse without consent - specially aggravated break, enter and commit serious indictable offence - crown case - complainant paying guest and hotle/motel with separate cabins - paying female guest asleep alone in cabin - publican using master key enters cabin - digitally penetrates complainant - first trial aborted May 2008 - applicant charged with encouraging publican employee to give false evidence thereby perverting the course of justice - bail refused - extremely serious health deterioration - hospitalisation - subsequent restoration of bail - servere poor prognosis for future - significance of permanent stay within framework of administration of criminal justice discussed - burden on applicant to satisfy court his medical condition such that it would be oppressive to him to try him and that the substantial public interest in having a trial of issues raised by these charges should be permanently set aside - failure to prove oppression - likely stress levels of accused during prospective trial not established - impact of potential stress on applicant's heart condition not established - steps available to ease applicant fatigue level discussed - arrangments made to ease fatigue levels - managing applicant's healh needs at trial discussed.
CASES CITED:	Jago v District Court (NSW) (1989) 168 CLR 23 R v Wu 2002 NSWCCA 214 Littler (2001) 120 A Crim R 512 at 513 per Hodgson JA
PARTIES:	Regina Graham Leslie Payne
FILE NUMBER(S):	2006/5642
COUNSEL:	Defence: G Thomas
SOLICITORS:	Crown: Mr C Bailey