R v RC

[2024] NSWDC 239

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v RC [2024] NSWDC 239

Hearing dates:

14, 15, 16, 21, 22 and 23 May 2024

Date of orders:

27 May 2024

Decision date:

27 May 2024

Jurisdiction:

Criminal

Before:

McGuire SC DCJ

Decision:

The application is dismissed

Catchwords:

CRIMINAL PROCEDURE — stay of proceedings — permanent – application for permanent stay of a special hearing following finding applicant not fit to stand trial – matter to proceed by way of judge alone special hearing – principles applicable where application based on common humanity ground – degree of impaired cognitive functioning – reduced life expectancy – suicidal ideation – evidence of physical independence – evidence of cognitive thought processes – general principles applicable to permanent stay applications

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:

Arrivoli v R [2017] NSWDC 112

Barton v R (1980) 147 CLR 75

Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256

Jago v District Court of New South Wales (1989) 168 CLR 23

Kitchingman v R [2023] NSWCCA 4

Koschier v R [2024] NSWCCA 24

R v Crawford (Unreported) Flannery DCJ 1 November 2018

R v Edwards [2009] HCA 20; (2009) 83 ALRJ 717

R v Hakim (1989) 41 A Crim R 372

R v Koschier [2023] NSWDC 323

R v Murray [2011] NSWDC 258

R v O’Neill (No 2) [2023] NSWDC 572

R v RD [2016] NSWCCA 84

Subramaniam v R [2004] HCA 51

TS v R [2014] NSWCCA 174

Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77

Category:

Principal judgment

Parties:

RC (Applicant)
Rex (Respondent/Crown)

Representation:

Counsel:
R Pettit (Applicant)
J Mehta (Respondent)

Solicitors:
Murphy’s Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s):

2022/00181592

Publication restriction:

Pursuant to s 15A of the Children (Criminal Proceedings Act) 1987 (NSW) there is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainants referred to as TD, CJ, TF, GT, SL or SM.

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) there is to be no publication of any information tending to identify the applicant referred to as RC until the conclusion of the criminal proceedings relating to the matter 2022/00181592.

JUDGMENT

Introduction

1. This is an application brought by notice of motion filed on 1 May 2024 seeking an order that the special hearing against the applicant be permanently stayed. The application is supported by an affidavit sworn by the applicant’s solicitor which annexed certain medical reports relevant to the application. During the hearing of the application additional medical reports were tendered on behalf of the applicant, evidence was tendered on behalf of the respondent and oral evidence was called.

Background

2. On 22 June 2022, the applicant, who is presently 77 years old, was arrested in relation to a number of complaints of historical sex offending concerning 2 complainants, CJ and SL and subsequently further charges were laid in relation to 4 additional complainants, TD, TF, GT and SM.

3. The applicant is charged with 39 counts of offences alleged to have been committed against six complainants. The applicant, a former elite swimming coach, is alleged to have committed the offences against six complainants who were elite swimmers coached by the applicant at [redacted] during the 1970s and 1980s.

4. In a recorded interview with the police on 23 July 2021 the applicant admitted to having coached the two complainants who had made the initial complaints, CJ and SL, and denied any sexual relationship with either of those complainants. At the time of his arrest on 22 June 2022 the applicant repeated his denials of any sexual relationship with the complainants at that time or any of his other swimming students.

5. Counts 1 to 8 relate to allegations relevant to the complainant TD, who was a swimming student training under the applicant at [redacted] where she swam competitively from the age of 9 years. The eight counts relevant to TD allegedly were committed when she was between the ages of 10 and 14 years of age.

6. Count 1 (indecent assault of a female under the age of 16 years) alleges that while the applicant was giving her a massage in the gym attached to [redacted] the applicant forced his erect penis into TD’s mouth when she was 10 ½ years old.

7. Count 2 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that following the conduct relevant to count 1, the applicant then inserted his erect penis into TD’s vagina.

8. Count 3 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) alleges that the applicant followed TD into the female toilets of [redacted] and inserted his erect penis into her vagina.

9. Count 4 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to allegation that when TD was either 11 or 12 years of age the applicant drove her from a training session at [redacted], forced her onto the back seat of his vehicle and inserted his erect penis into her vagina, before driving her home.

10. Count 5 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that when TD was 12 years old the applicant arranged for TD to be alone in the sauna at [redacted] where he removed her swimsuit and inserted his penis inside her vagina.

11. Count 6 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that in his office at [redacted] the applicant inserted his erect penis inside TD’s vagina.

12. Count 7 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation at a time when TD was aged 13 or 13 ½ years old. That count relates to an incident alleged to have occurred at the applicant’s home when the applicant gave TD and another girl alcohol to drink, showed them pornographic material and later restrained TD’s hands with leather straps, removed her clothes and inserted his erect penis into her vagina.

13. Count 8 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that when TD was 14 years old, in the massage room at [redacted], the applicant pushed TD against a wall, lifted her up from the ground and then inserted his erect penis inside her vagina.

14. Counts 9 and 10 relate to a complainant CJ who began training under the applicant at [redacted] from the age of 15 years.

15. Count 9 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that when the complainant, CJ, was 16 years old the applicant took her for a drive in his car and then took her to a unit at [redacted] where he inserted his erect penis into her vagina.

16. Count 10 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that, at a time when CJ was 16 years old, the applicant took her to a motel on Parramatta Road at Camperdown where he is alleged to have inserted his penis into her vagina.

17. Count 11 (indecent assault of a female under the age of 16 years) relates to an allegation that, at a time when the complainant TF was 10 years of age, the applicant rubbed his hands over TF’s breasts and genitals over the outside of her swimsuit.

18. Counts 12 to 14 relate to the complainant GT who began swimming and training at [redacted] from the age of approximately 10 years old and continued there until she was approximately 16 years old.

19. Count 12 (indecent assault of a female under the age of 16 years) relates to an allegation that, at a time when GT was about 14 years old, in a locked massage room at [redacted] the applicant removed GT’s swimsuit and rubbed her clitoris.

20. Count 13 (indecent assault of a female under the age of 16 years) relates to an allegation that following the conduct alleged for count 12 the applicant then inserted one or more of his fingers inside GT’s vagina.

21. Count 14 (indecent assault of a female under the age of 16 years) relates to an allegation that following the conduct alleged for counts 12 and 13 the applicant then placed GT’s hand on his erect penis.

22. Counts 15 to 26 relate to the complainant SL who began training under the applicant at [redacted] from the age of 15 years.

23. Count 15 (indecent assault of a female under the age of 16 years) relates to an allegation that when SL was 15 years of age in the sauna at [redacted] the applicant rubbed his hands on SL’s vagina then inserted his fingers into her vagina.

24. Count 16 (indecent assault of a female under the age of 16 years) relates to an allegation that following the conduct alleged for count 15 the applicant then put SL’s hand on his shorts to rub his erect penis through the shorts.

25. Count 17 (indecent assault of a female under the age of 16 years) relates to an allegation that following the conduct alleged for counts 15 and 16 the applicant then massaged SL’s breasts and inserted two fingers inside her vagina.

26. Count 18 (indecent assault of a female under the age of 16 years) relates to an allegation that following the conduct alleged for counts 15 to 17 the applicant then inserted his erect penis into SL’s mouth.

27. Count 19 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that following the conduct alleged for counts 15 to 18 the applicant then inserted his erect penis inside SL’s vagina.

28. Counts 20, 21 and 22 relate to it an incident alleged to have occurred involving the applicant and SL at a time when SL was 16 years of age.

29. Count 20 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that in the sauna at [redacted] the applicant inserted his erect penis with force into SL’s vagina.

30. Count 21 (indecent assault of a female of or above the age of 16 years) relates to an allegation that at the time of the conduct relevant for count 20 the applicant also placed SL’s hands on his erect penis.

31. Count 22 (indecent assault of a female of or above the age of 16 years) relates to an allegation that at the time of the conduct relevant for counts 20 and 21 the applicant also inserted his erect penis with force inside SL’s mouth.

32. Count 24 (indecent assault of a female of or above the age of 16 years) relates to an allegation that the applicant took SL into the sauna at [redacted], shut the door and forced SL to masturbate his penis.

33. Count 23 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that at the time of the conduct alleged for count 24 the applicant pushed SL against the wall and forcefully inserted his penis into her vagina.

34. Count 26 (indecent assault of a female of or above the age of 16 years) relates to an allegation that in the sauna at [redacted] the applicant placed SL’s hands on his erect penis and made her masturbate him.

35. Count 25 (carnal knowledge by a teacher of a girl of or above the age of 10 and under the age of 17) relates to an allegation that at the time of the conduct alleged for count 26 the applicant then forced his penis into SL’s vagina.

36. Counts 27 to 39 relate to the complainant SM who began swimming and training at [redacted] under the applicant as her coach from the age of 12.

37. Count 27 (indecent assault of a female under the age of 16 years) relates to an allegation that at the applicant’s home in [redacted] and at a time when SM was 12, the applicant showed her and another girl pornographic material and then, in the bedroom of his house, massaged her breasts.

38. Count 28 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for count 27 SM was again directed to the applicant’s bedroom and the applicant again massaged her breasts.

39. Count 29 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for counts 27 and 28 the applicant inserted his fingers into SM’s vagina in a forceful manner.

40. Count 30 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for counts 27 to 29 the applicant then inserted the fingers of his other hand forcefully into SM’s vagina and rubbed her breasts with his hands.

41. Count 31 (indecent assault of a female under the age of 16 years) relates to an allegation that in the massage room at [redacted], the applicant directed SM to roll her swimsuit down to her waist and he then massaged her exposed breasts.

42. Count 32 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for count 31 the applicant then inserted his fingers into SM’s vagina with force.

43. Count 33 (indecent assault of a female under the age of 16 years) relates to an allegation that at a time when SM was 12 years of age in the massage room at [redacted] the applicant directed her to completely remove her swimsuit and lie on a massage table and he then massaged her legs and groin.

44. Count 34 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for count 33 the applicant then used his fingers to spread SM’s vagina apart.

45. Count 35 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for counts 33 and 34 the applicant then inserted his fingers inside SM’s vagina.

46. Count 36 (indecent assault of a female under the age of 16 years) relates to an allegation that at a time when SM was 12 or 13 years of age in a small room near the gym at [redacted] the applicant massaged SM’s naked breasts.

47. Count 37 (indecent assault of a female under the age of 16 years) relates to an allegation that at the time of the conduct alleged for count 36 the applicant then then turned SM onto her stomach, massaged her back and then inserted his fingers into SM’s vagina.

48. Count 38 (indecent assault of a female under the age of 16 years) relates to an allegation that at a time when SM was 15 years of age in the small room near the gym at [redacted] the applicant massaged SM’s naked breasts.

49. Count 39 (sexual intercourse with a person under the age of 16 years) relates to an allegation that at the time of the conduct alleged for count 38 the applicant then turned SM onto her stomach, massaged her legs and then inserted his fingers inside SM’s vagina.

50. Following committal proceedings medical reports were obtained on behalf of the applicant and the matter was listed for a fitness hearing pursuant to s 36(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) to be held on 4 December 2023.

51. During the fitness hearing on 4 December 2023 various medical reports were tendered on behalf of the applicant and on behalf of the Crown.

52. Those medical reports included a report from Dr Eagle who concluded that the applicant displayed signs and symptoms of a major depressive disorder, moderate depressive episodes and also had a major neurocognitive disorder due to vascular disease. Dr Eagle was of the opinion that the applicant could understand the general court process, the logistics of the hearing, and the nature of the allegations and that he was capable of understanding his options to plead. However, Dr Eagle was of the opinion that the applicant had difficulties with general concentration and attention and that his executive function and capacity to reason compromised his ability to make informed decisions, to follow the course of proceedings during a trial, to interpret information and to provide meaningful instructions. Dr Eagle was also of the opinion that the applicant’s cognitive function, mood and susceptibility to seizures would increase with stress during the course of a trial.

53. In a report relating to fitness by Professor Stephen Woods, it was confirmed that the applicant was currently unfit and would not become fit in future.

54. On the issue of modifications to the trial process that might ameliorate the applicant’s conditions, the reports tendered on the fitness hearing established that a support person with additional breaks would address issues such as fatigue, susceptibility to stress and problems with attentional concentration. However, the reports established that even with modifications the applicant appeared to have problems associated with capacity to reason and interpret information, and that would compromise his ability to interpret the evidence given by witnesses and provide meaningful instructions to his legal representatives.

55. Accordingly on 4 December 2023 her Honour Judge Hopkins held that the applicant was unfit to be tried and found on the balance of probabilities that he would not become fit to be tried during the following 12 months. A special hearing was to be held under Part 4, Division 3, s 47 (1b) and s 48 and s 53 of the MHCIFP Act.

56. Subsequently the Director of Public Prosecutions (NSW) advised of the decision to proceed.

57. The matter was listed for mention on 2 February 2024 and then listed to proceed to a special hearing commencing on 29 April 2024 with an estimate of eight weeks.

58. Following the s 140 conference the defence wrote a letter to the Crown, dated 23 April 2024, confirming that there would not be an application for a permanent stay of the proceedings, unless there was a change in the circumstances of the applicant’s health.

59. On 29 April 2024 the matter was adjourned for the special hearing to commence on 2 May 2024.

60. On 1 May 2024 the applicant filed the present Notice of Motion seeking the permanent stay.

Evidence on the application

61. Submitted on behalf of the applicant was the following:

Exhibit 1: a defence bundle on the permanent state application containing:

(i) an affidavit of Grace Nicholson dated 1 May 2024;

(ii) the indictment;

(iii) the Crown case statement;

(iv) a report of Professor Stephen Woods dated 28 April 2024;

(v) a report of Professor Stephen Woods dated 27 November 2023;

(vi) a report of Dr Anthony Henderson dated 6 July 2023;

(vii) a report of Professor Terry Diamond dated 27 June 2023;

(ix) a report of Dr Colin Mahoney dated 3 May 2023;

(x) a letter from Dr Matthew Horton dated 2 May 2023;

(xi) a report of Dr Kerri Eagle dated 7 November 2023;

(xii) a report of Dr Kerri Eagle dated 23 November 2023;

(xiii) an affidavit from the applicant’s wife, Mrs C dated 2 May 2024;

(xiv) a report of Prof Stephen Woods dated 6 May 2024;

(xv) a report of Dr Anthony Henderson dated 10 May 2024; and

(xvi) a report of Dr Tuly Rosenfeld dated 10 May 2024.

Exhibit 2: a CT brain scan dated 2 August 2022; and

Exhibit 3: a clinical report in the Bankstown hospital dated 26 July 2021.

62. Admitted on behalf of the Crown was the following:

Exhibit A: an agreed tender bundle containing:

(i) the indictment;

(ii) the Crown case statement;

(iii) a schedule of particulars for the counts on the indictment;

(iv) a joint bundle of material tendered on the fitness enquiry;

(v) a transcript of the fitness hearing before her Honour Judge Hopkins on 4 December 2023; and

(vi) the judgement by her Honour Judge Hopkins of 4 December 2023;

Exhibit B: a statement by Detective Senior Constable Daniel Linaker dated 6 May 2024 with various attachments;

Exhibit C: a statement by senior Constable David Phillips dated 6 May 2024;

Exhibit D: a CD containing surveillance footage of the applicant’s movements on 6 May 2024;

Exhibit E: a CD containing a police body worn video recording of a conversation between the police and the applicant during a bail compliance check on 5 May 2024; and

Exhibit F: a CD containing CCTV footage from the Bankstown Police Station showing the applicant reporting in accordance with his bail conditions on 1 April 2024, 8 April 2024, 15 April 2024, 22 April 2024 and 6 May 2024.

The medical evidence

63. In general the medical evidence tendered on this application described the applicant’s physical and mental conditions. Many of those same reports were relied on for the fitness hearing.

64. In short the reports describe the following medical disorders suffered by the applicant:

(i) cancer of the thyroid gland diagnosed in 2010 with progressive disease involving metastases to the mediastinal, hilar and lungs;

(ii) postsurgical hyperthyroidism following thyroid and neck surgery in 2010 and 2014;

(iii) partial right hemiparesis due to a left cerebrovascular accident from a blood clot and complicated by epilepsy;

(iv) atrial fibrillation (a type of arrhythmia) complicated by congestive heart failure, requiring a pacemaker;

(v) narrowing of the arteries and stage 3 chronic kidney disease;

(vi) chronic depression and adjustment disorder.

65. The applicant’s cancer is described in various reports as unsuitable for further surgical intervention and is considered incurable. The applicant suffered a series of minor strokes beginning about eight years ago, the most recent of which occurred in about late May 2023.

66. The applicant is described as able to care for himself, walk and drive and is described as having need for assistance when climbing stairs and suffers from regular falls.

67. The applicant’s life expectancy is reduced, primarily because of his progressive cancer diagnosis. It is described that he has a 20% chance of a five year life expectancy.

68. The reports describe the applicant’s mental condition as going into increasingly rapid cognitive decline. He has been diagnosed as being depressed with ongoing suicidal ideation. The applicant’s cerebrovascular disease, and other physical health conditions including his cancer, the medication regime and depressive symptoms are described as likely contributing to the further decline of his cognitive functioning.

69. The reports describe the applicant as being severely depressed and indicate an attempt in July 2021 to commit suicide by carbon monoxide poisoning and an attempted suicide by an overdose of pain medication.

Professor Stephen Woods

70. The applicant relied in particular on three reports from Professor Stephen Woods, forensic psychologist, dated 27 November 2023, 28 April 2024 and 6 May 2024. In addition Professor Woods was called to give evidence and was cross-examined by the Crown on the hearing of the stay application.

71. In his November 2023 report Professor Woods conducted neuropsychological testing which resulted in the applicant being assessed for verbal comprehension in the borderline range, perceptual reasoning in the extremely low range, working memory in the borderline range, processing of information speed in the borderline range, full-scale IQ in the extremely low range and general ability in the extremely low range. Professor Woods opined that the applicant’s results were consistent with significantly impaired cognitive functioning. In that report Professor Woods was of the opinion that the applicant was not and would not in the future become fit to participate in legal proceedings or, except to assert his innocence, provide his legal representatives with reliable instructions. The report also includes an opinion that the applicant’s level of cognitive functioning was expected to continue to decline. Professor Woods considered that although modifications to normal trial procedures, including regular breaks in proceedings and the provision of a support person, would assist to enable the applicant to cope with being present, he did not think such measures would be of assistance for any more than possibly two hours.

72. In his April 2024 report Professor Woods observed the applicant’s cognitive function was continuing to deteriorate. He noted that the applicant had told him that he had accidentally overdosed on prescribed palliative care medications and noted that the applicant suffered from a terminal cancer which appeared to be rapidly developing. Professor Woods was then of the opinion that the applicant’s cognitive functioning was rapidly deteriorating and symptoms of depression were becoming more intense. Professor Woods then expressed the opinion that the applicant was unlikely to be able to cope with being present, either in person or remotely, on a daily basis throughout the special hearing.

73. In the 6 May 2024 report Professor Woods noted that the applicant had attended for treatment with regular formal reviews of his mental state and cognitive functioning since 27 August 2022 and that over that period he had observed a progressive decline in cognitive functioning, including the applicant’s ability to maintain concentration, recall and communicate. Professor Woods noted that the applicant had episodically disclosed delusional thoughts and perception mostly relating to believing that a former psychologist had been visiting him during the evening. The professor also noted that the applicant increasingly reported cancer related pain in increasing severity, adding that the prescription medications prescribed for his cancer care may to some extent explain his reported delusional beliefs.

74. Professor Woods also noted that through the course of his treatment the applicant increasingly questioned the value of continuing to live and had spoken of his sense of humiliation and shame in respect of the charges that would soon be brought before the court and in the context of his increasing pain levels and reduced level of physical function. Professor Woods noted that the applicant disclosed that he would prefer to die of cancer rather than “go through” a trial but that if he did not die of cancer related causes in the near future he had plans to take his own life. The applicant disclosed to Professor Woods on 20 April 2024 that he had plans to take his own life on ANZAC Day. In a number of places in his report Professor Woods refers to the applicant feeling suicidal because of “charge related shame”.

75. Professor Woods also noted that the applicant’s mental and somatic health had been observed to continue to decline at an escalating rate such that he is not fit to be present in person or remotely in any legal proceedings and that, if he was required to attend that placed him at a very high risk of acting on his current suicidal ideations. Professor Woods also noted that the applicant’s level of charge related shame was profound and was the primary factor underpinning his symptoms of major depressive order, acute, with suicidal ideations.

76. In his oral evidence Professor Woods stated that although there were three drivers of the applicant’s depression, in his opinion the shame and guilt related to these proceedings was the strongest. That shame and guilt response to the proceedings, according to Professor Woods, was intertwined with a concern that the applicant would leave his wife penniless because of the financial expense of the trial. Professor Woods also gave evidence that if a special hearing proceeded the risk of suicide would increase. The professor stated that he had been told by the applicant that, if a stay of the special hearing was not granted, the applicant would commit suicide. Professor Woods acknowledged that the applicant was sufficiently cognitively intact to understand that the proceedings were occurring, despite him having been found unfit, was aware of the allegations and that any awareness that the allegations were proceeding to a special hearing, if a stay was not granted, would be likely to have an adverse impact on his mental health and increase his depression.

77. In addition Professor Woods gave evidence that a decline in the applicant’s mental health, meaning a worsening of his depression, would in turn give rise to a decline in his cognitive functioning. Although Professor Woods accepted there were periods of time measured in hours or days when the applicant was cognitively aware and insightful, that as the day wore on it was likely that his mental health and fatigue would set in.

78. On the issue of the effects on the applicant if he was scheduled or otherwise put into care, he was of the opinion that if detained in a mental health or correctional centre or any other place where he was detained like an aged care facility, his mental health would further decline.

79. During cross-examination Professor Woods stated that he did not consider it necessary to schedule the applicant, even following his disclosure of his plans to commit suicide on ANZAC Day, because the professor was comfortable that the applicant was not going to act on his stated intention. Professor Woods also accepted that he was not so concerned about any real attempt to commit suicide that he felt it necessary to relay any suicidal concerns to other health carers or medical professionals treating the applicant. In his evidence the professor stated that he understood from his conversations with the applicant that the applicant wanted to bury his head in the sand and did not want to be involved in any of the legal proceedings. The professor acknowledged that the applicant currently had no clear stated plan to commit suicide, but rather expressed a vague intention to commit suicide if his stay application was unsuccessful.

80. Professor Woods also stated in his evidence that the applicant had told him that he denied each of the allegations and had consistently said to Professor Woods that he “didn’t do it”. In addition the applicant told Professor Woods repeatedly that he had hundreds or thousands of letters to his credit and that he had spoken to the professor about a number of his former swimming students and their families wanting to support and visit him.

81. When cross-examined about the surveillance footage, Professor Woods was asked to assume that footage showed the applicant on 6 May 2024 getting into the driver’s side of a motor vehicle and reversing that vehicle, with no other occupants out of the applicant’s driveway and then driving through various streets before parking his vehicle across the road from the Bankstown RSL. Professor Woods agreed that reversing a motor vehicle on the road, driving through busy roads and negotiating a vehicle into a car park displayed a degree of cognitive functioning.

82. The professor accepted that any accused, particularly one who was unwell and late in life, when faced serious child sex allegations, would feel a great deal of shame and embarrassment and there was nothing exceptional about the applicant’s reaction in that respect. Professor Woods also noted that the accused had spoken to him about medically assisted suicide. The professor also acknowledged that there was no objective evidence to establish that the applicant had been stockpiling medications he needed for any genuine attempt to commit suicide by overdose. Rather, his evidence was that he understood from his conversations with the applicant’s wife, that the applicant’s medications were now all in a Webster Pack which was possessed and monitored by his wife and palliative care nurses so that their frequency and ingestion could be properly monitored.

Dr Antony Henderson

83. Dr Antony Henderson, consultant forensic psychiatrist, prepared reports dated 6 July 2023 and 10 May 2024. In the July 2023 report Dr Henderson noted that he had assessed the applicant on one occasion on 3 July 2023 via audiovisual link. During that interview the applicant was able to tell Dr Henderson his age, his place of residence and the number of years he had been married to his wife. He also reported the names and ages of his two daughters and that he had been employed as a swimming coach at [redacted] for 53 years; retiring 3 years ago.

84. The applicant reported to Dr Henderson his medical conditions in what Dr Henderson described as a vague, but apparently generally accurate way. He reported that he had suffered a series of right-sided strokes, the first eight years ago, a further stroke three years ago causing an admission to St George Hospital. He told Dr Henderson the most recent of the strokes was six weeks ago, experiencing weakness on his left side and requiring admission to Bankstown Hospital. He told Dr Henderson he was under the care of an oncologist with Prof Diamond treating his thyroid cancer and that he had been experiencing multiple falls. The applicant also reported to Dr Henderson that he had difficulties with mental health over recent years, low mood, the absence of joy, low energy and feelings of hopelessness and despair. The applicant told Dr Henderson that he thought about suicide daily and that he was confused and suffered from memory loss. The applicant told Dr Henderson that he had attempted suicide through carbon monoxide poisoning about six weeks before the consultation and was then admitted to Banks House at the Bankstown Hospital. He also told Dr Henderson that he took an overdose of medication a number of weeks ago but claimed that he did not disclose that suicide attempt and was not admitted to hospital.

85. Dr Henderson noted that in his observations of the applicant over the AVL the applicant appeared unsteady on his feet and had difficulty getting into and out of a chair. He noted that although he answered questions in a vague and discursive manner that the applicant did not appear to be grossly thought disordered. He noted that the applicant became irritable when asked to discuss the criminal charges which the applicant described as “filthy and bad” and he told Dr Henderson that he strongly denied the allegations.

86. The report notes that the applicant was able to tell Dr Henderson when he is next due to appear in court, which was then 7 June 2023, and that he understood the purpose of that hearing was to determine if he was well enough to face the charges. The applicant then told Dr Henderson a number of things to indicate that he understood the purposes of courts, of juries, of judges and, in general, of the criminal legal process and pleas of guilty or not guilty. Dr Henderson was of the opinion that although the applicant had a rudimentary understanding of the accusations against him and court proceedings, that he appeared to be unfit specifically in the area of concentration and short-term memory and that he was likely to experience fatigue and be unable to follow the proceedings, understand the substantial effect of any evidence and respond to that evidence during the course of a lengthy trial.

87. Dr Henderson opined that the applicant’s significant depressive disorder was likely to contribute to his cognitive health difficulties.

88. In the May 2024 report Dr Henderson noted that he had assessed the applicant on 8 May 2024, again via AVL, for a period of about 1 ½ hours and that he also interviewed the applicant’s wife and the applicant’s solicitor. During his interview with the applicant the applicant was able to recall previously having been assessed by Dr Henderson but could not recall the doctor’s name. He told Dr Henderson that he knew that he was a psychiatrist and stated that the purpose of the interview was to see what conditions he was suffering from and to prove that he was not fit.

89. The applicant told Dr Henderson that he had stockpiled medication which he planned to use to commit suicide. He again reported to Dr Henderson the two previous suicide attempts, namely the carbon monoxide attempt and the previous overdose attempt. He told Dr Henderson that he had intended to take his life on ANZAC Day but had been talked out of it by Professor Woods. When asked if he had any current plan or intention to immediately take his own life the applicant stated that, although he continued to experience suicidal thoughts on a daily basis, he “can’t promise you… (he was) battling” and then added “if I was found unfit… I might keep going but I can’t promise”.

90. Dr Henderson then administered a self-report depression anxiety and stress scales (DASS – 21). The results of that assessment were that the applicant suffered from extremely severe depression, extremely severe anxiety and extremely severe stress. On conducting a mini mental state examination (MMSE) the applicant demonstrated significant impairment in his orientation, attention, concentration, short-term memory recall with evidence of significant cognitive deterioration since the last review.

91. Dr Henderson noted that in his interview with the applicant’s wife, which occurred by telephone on 8 May 2024, that she reported that her husband had become doddery and confused. She told Dr Henderson that when the applicant went shopping by himself he would purchase unnecessary items which he then brought home. Mrs C reported that her husband required some assistance dressing and that he spent his time on the computer looking at TikTok and had looked up methods of committing suicide. Mrs C reported to Dr Henderson that she looked in search of any stockpiled medication in order to confiscate them but had been unable to find any.

92. Dr Henderson noted in his report a deterioration in depressive disorder and cognitive functioning since the last review and an intensification of his suicidal ideation. Dr Henderson noted that the applicant did not have any clearly possessed intention to commit suicide at the time of the assessment but stated that he was of the view that if the applicant was requested to attend a special hearing he would consider that unjust, humiliating and shameful to the point where he may proceed with a further suicide attempt.

93. Dr Henderson also noted that elevated levels of stress and depression in aged individuals with cancer, stroke and vascular dementia were strongly associated with an increased cancer mortality, poor outcomes and elevated risk of recurrent stroke. He expressed the conclusion that stress and associated shame and humiliation of attending an eight week special hearing was likely to result in a deterioration of the applicant’s depression and a significant exacerbation of his pre-existing physical health conditions with poor outcomes with respect to morbidity and mortality.

94. In his oral evidence Dr Henderson stated that if the applicant’s legal circumstances did not exist, that he did not believe that the applicant was a significant suicide risk. He described the applicant’s response to his legal predicament as extreme and concerning. Dr Henderson added that in his opinion the progression of the court matter was the critical factor to determine the applicant’s risk of suicide, rather than the applicant’s attendance. Dr Henderson believes that if the applicant was required to attend court in person that that would add an additional layer of humiliation and confrontation which the applicant would find utterly inconceivable and unacceptable and that would add to his suicide determination.

95. However Dr Henderson believed that the applicant’s primary awareness of extant legal proceeding was the motivating factor for suicide. In Dr Henderson’s opinion if the special hearing were to continue and the applicant was left uninformed on a regular basis about the progress of those proceedings, there would still be a degree of stress and suicide risk and if he was made more frequently aware of the progress of the proceedings he would find that confronting.

96. In relation to measures to mitigate risk Dr Henderson did not consider a change of medication or dosage would be likely to be effective but stated that it may assist dealing with the applicant’s feelings of shame and embarrassment if non-publication orders were made for the progression of the special hearing.

97. When asked about evidence that establishes the applicant independently driving Dr Henderson said that he would not necessarily find that ability to be inconsistent with the diagnosis of dementia. He noted that at times patients with early dementia can accommodate and compensate for their deficits and at times appear to be quite intact.

83. Dr Henderson stated in his oral evidence that cognitive function can fluctuate with a deterioration of cognitive function towards late afternoon and into the evening in what he described as a “sun-downing effect”. He described that the applicant can appear quite lucid for significant periods of time during the day and that it was very possible for him to have good days and bad days.

84. The doctor stated that the applicant’s ability to drive by himself and to attend the police station may be evidence of “procedural memory”. However, he accepted that the accused presenting, by himself, with paperwork at the police station and engaging in conversations with police officers to report in accordance with his bail conditions showed a degree of awareness in relation to date and location and reflected a degree of executive cognitive functioning.

85. Dr Henderson was also of the opinion that the applicant’s depression was strongly correlated to his feelings of shame about his legal predicament and guilt of emotional and financial imposition on his wife. On the issue of the applicant’s ability to stockpile medication for future suicide attempts he agreed that the appropriate treatment practice would be to remove that stockpile and supervise his medications, by way of a Webster Pack possessed and administered by others.

86. Dr Henderson was of the opinion based on things told to him by the applicant that if a stay was ordered the applicant would equate that to the matter being dismissed and that in that situation he would probably not commit suicide.

87. Dr Henderson agreed that independent driving is capable of showing cognitive functioning capacity and accepted that he had never physically consulted with or assessed the applicant.

88. In cross examination Dr Henderson accepted the applicant suffered from a vascular dementia “at the milder end of the spectrum” which he described as “sort of formative or beginning of that disease”.

89. When cross-examined about the evidence of the applicant’s bail check conversation with police officers on 5 May 2024, Dr Henderson agreed that the applicant’s ability to express himself logically and coherently at that time suggested that he has a more intact cognitive function than deficit. Dr Henderson also accepted that a convivial presentation by the applicant during that discussion would not suggest depression in its own right at the time.

90. Further Dr Henderson stated in cross examination that if the offences were proven he believed, based on his discussions with the applicant, that the applicant would consider that to be at destruction of his badge of honour earned over many years as a successful elite swimming trainer.

Dr Tuly Rosenfeld

106. Dr Tuly Rosenfeld, consultant geriatrician and physician, prepared a report dated 10 May 2024 which, in part, is a document review of reports from other medical practitioners. Dr Rosenfeld has not consulted with the applicant or been involved in his care. His report clearly indicates that he has not seen, examined or spoken to the applicant either in person or by AVL. Rather, his opinions are based entirely on the information, history and opinions contained in the reports of other doctors.

107. Having reviewed other medical reports Dr Rosenfeld summarised the applicant’s significant illnesses as:

(i) Major cardiac disease, atrial fibrillation, pacemaker and heart failure;

(ii) major brain vascular disease with recurrent stroke (two significant strokes on the right and left sides of the brain);

(iii) epilepsy (likely related to brain vascular disease and stroke); and

(iv) metastatic (widespread) progressive terminal thyroid cancer resistant to treatment.

108. In summarising the medical reports in relation to the applicant’s mental health, Dr Rosenfeld summarised those opinions as establishing the applicant had suffered cognitive and executive impairments consistent with the presence of delirium and/or dementia, progressive decline in his cognitive functioning with delusional thoughts and noted that the report from Dr Kerri Eagle dated 7 November 2023 contained the first reference to major neurocognitive disorder which Dr Rosenfeld described as the first mention of the onset of dementia.

109. Dr Rosenfeld commented in his report, based on his document review, that it was reasonable to assume that the applicant’s cognitive function and mood would worsen and the likelihood of seizures would increase in the context of stress caused during a trial. He noted that even small degrees of stress and anxiety would exacerbate and exaggerate the symptoms, distress and behavioural symptoms in dementia. Dr Rosenfeld was of the opinion that worsening confusion and delirium superimposed on his dementia would very likely lead to worsening complications, adverse events and mortality.

110. Dr Rosenfeld’s opinion was that stress and anxiety arising from legal proceedings was likely to exacerbate the worsening of the applicant’s cardiac health and that stress was a recognised factor in the occurrence of stroke, noting that the applicant suffered with vascular brain disease and a number of indicators in the brain scan of previous stroke events. He was of the opinion that the likelihood of recurrent strokes was significantly increased as a consequence of the stress associated with the proceedings. He also considered that the applicant’s cognitive impairment was likely to deteriorate with anxiety and stress associated with the proceedings. In relation to the applicant’s metastatic cancer, Dr Rosenfeld noted that the progression of that cancer was likely to be worsened with stress and anxiety associated with the proceedings, adding that it was impossible to quantify the effect of stress on the progression of the cancer. He was also of the opinion that the applicant’s dementia was likely to worsen as a result of stress associated with the proceedings.

111. Dr Rosenfeld’s report concludes that in the context of his multiple medical, mental, psychological and cognitive illnesses it was very likely that the stress associated with either his knowledge of, awareness of, or participation in the proceedings would lead directly to adverse events, complications and deterioration.

112. In his oral evidence Dr Rosenfeld expressed the opinion that the applicant was likely to experience stress associated with the charges against him even if a stay was ordered. He stated that the applicant would still recall the accusations and still be concerned “about the fact that they were out there” and that “he would continue to be stressed”.

113. In his evidence in chief Dr Rosenfeld was asked to assume four scenarios in relation to the progression of the special hearing and asked to quantify the applicant’s likely stress levels associated with each scenario from a scale of 1 to 10 (with 1 being the lowest and 10 being the highest) as follows:

(i) the first scenario: the applicant being required to be present in court throughout the special hearing, which Dr Rosenfeld described as the most stressful and would likely result in the applicant experiencing a stress level of 8 or 9;

(ii) the second scenario: the applicant being required to appear only remotely by AVL throughout the special hearing, which Dr Rosenfeld described as being less stressful than the first scenario, and would likely result in the applicant experiencing a stress level of 6 or 7;

(iii) the third scenario: the applicant remaining at home during the special hearing and not appearing either physically or remotely, but rather being given regular updates about what was happening in court. Dr Rosenfeld said that because of the applicant’s underlying cognitive problems and his paranoia and confusion he would still find that scenario stressful, although less stressful than scenarios one or two. He assessed the likely stress level on the applicant of that third scenario as being 4 or 5. Dr Rosenfeld added that in this scenario if a doctor or somebody else was at home with the applicant giving him general updates rather than verbatim graphic details of the evidence that that would be less stressful again.

(iv) The fourth scenario: the applicant remaining at home during the special hearing, not required to attend either personally or via AVL, aware generally that the special hearing was proceeding, but not receiving regular updates to the extent that that was possible. Dr Rosenfeld considered that scenario to be even less stressful than scenarios 1, 2 or 3, but said because the applicant would continue to ruminate and worry about what was occurring during the special hearing and want to know what was happening that he would still feel some level of stress and agitation. He assessed the likely stress level on the applicant of the fourth scenario as being at 2 or 3.

114. Dr Rosenfeld was then asked to assume a further scenario being the same as the fourth scenario with the added feature of a non-publication order and informing the applicant that as result of that order there would be no publication identifying him or any of the complainants. Dr Rosenfeld agreed that that further scenario would result in an even lower stress rating which he quantified at level 1.

115. In addition Dr Rosenfeld accepted from the fact that the applicant had told a number of doctors if there was to be a public trial or public special hearing that he would suffer humiliation and embarrassment because of the fact that the allegations were being aired publicly, that it followed that the applicant had sufficient cognitive thought processes and understanding to also understand the inverse proposition, namely that if the matter progressed with an non-publication order he would feel less humiliated or embarrassed.

116. In his oral evidence Dr Rosenfeld accepted the limitations arising from not consulting with the applicant at all, accepting that that meant that he was deprived of additional information that he might expect to receive from directly speaking to and observing a patient and forming his own views and opinions.

117. Dr Rosenfeld gave evidence explaining the various indicators in the exhibit 2 brain scan which he described as showing signs of frontal lobe atrophy, small vessel strokes, an old parietal lobe stroke and enlarged ventricles. Dr Rosenfeld gave evidence that the scan showed shrinkage to the brain and damage consistent with minor strokes describing the damage to the brain as irreversible. In cross examination Dr Rosenfeld accepted that that shrinkage could also be associated with alcohol consumption and agreed that the evidence from Mrs C that the applicant continues to drink at least a glass of scotch each day could well have resulted in the deficiencies shown in parts of the brain scan.

118. In relation to life expectancy Dr Rosenfeld acknowledged that he relied on the opinion in Dr Diamond’s report that the life expectancy was less than 20% over the next five years and that he understood that to mean that the applicant had a 20% chance of living for five years.

119. On the topic of the applicant’s chronic kidney disease Dr Rosenfeld noted that it was not yet at a severe stage and that it did not require dialysis.

120. Dr Rosenfeld accepted that the opinion of Dr Henderson was that the applicant suffered only mild dementia.

121. On the topic of the evidence tendered by the Crown in relation to the applicant’s ability to drive, to shop independently, to report to the police and to engage in a 20 minute conversation during the bail check visit, Dr Rosenfeld said that he was surprised or very surprised that the applicant was able to engage in those activities. Although Dr Rosenfeld described the applicant as capable of driving, when asked about whether he considered based on the documents that the applicant was capable of having an intelligent conversation with a police officer every Monday in order to report in accordance with his bail conditions, Dr Rosenfeld stated “on the basis of what I’ve seen, I’d be surprised if he was able to do that.” In relation to the ability to engage in conversation Dr Rosenfeld said it was possible for the applicant to engage in a rational conversation provided he had the right prompting and cues from others.

122. When giving evidence about the likely effects on the accused if he was told that the stay application was unsuccessful, Dr Rosenfeld initially stated that that would cause the applicant to “go berserk” through distress, later clarifying that he should not have used the word “berserk” but explained that there would be physically observable distress which would be obvious to his wife and to his treating doctors.

The police video evidence

123. Exhibit D is a disc containing surveillance video showing the applicant on 6 May 2024 walking independently and taking his rubbish bin out for collection. The applicant is then shown getting into a motor vehicle by himself and driving towards the Bankstown police station. The applicant is followed during that journey by a police vehicle. The statements of the police who observed the applicant’s driving do not note any erratic driving or any observable difficulties the applicant had in operating the motor vehicle or navigating through traffic. The applicant is observed parking his car in a car park opposite the police station, crossing the road on foot, going to the police station to report and then later leaving the police station, crossing the road, returning to the car park, into his car and driving home. The police statements do not note anything erratic or problematic arising from the accused’s ability to operate the motorcar or navigate through the traffic on the return journey. The surveillance footage then records the applicant, after he arrived home, taking his rubbish bin back into his property.

124. Exhibit F, a disc containing a number of files of CCTV footage from the Bankstown Police Station, establishes that the applicant walked by himself and unassisted along the footpath, then up the stairs into the Bankstown police station, waited in line at the front counter, reported to the police, handed up piece of paper to the police officer who served him and then engaged in a conversation for approximately one or two minutes. The footage then shows the applicant being provided with a new piece of paper which he takes and then walks without any assistance from the police station down the stairs, onto the street and out of view. That footage establishes that same process of attending the police station and reporting occurred on 1 April 2024, 6 April 2024, 8 April 2024, 15 April 2024 and 22 April 2024. It would appear from the footage that each time the applicant presented to the police station he was served by a different police officer.

125. Exhibit E is a disc containing footage from a police body worn video camera of the conversation on 5 May 2024 which lasted approximately 20 minutes. On that day two police officers attended the applicant’s house. When they attended they were told by the applicant’s wife Mrs C that the applicant was not present because he had gone to the shops. Mrs C invited the officers inside the house and they sat and waited for the applicant at the kitchen table. The footage shows that when the applicant arrived he attended with a number of plastic shopping bags which he put on the kitchen counter. The applicant then sat down and had a conversation with the two police officers. During that conversation the applicant was told the police were there for a bail check. The applicant then told the police that he had the “shits” about two aspects of the bail orders. He complained about the restriction on him being contacted by previous students or their families, particularly during the Christmas period or when he was unwell, and he then complained about the need to report to the police station every Monday. During the conversation the applicant told the police that he reported every Monday and had never missed a Monday reporting. On the topic of driving the applicant told the police that he drove his own car and that he understood that he was restricted to drive to within 15 kilometres of his home. He told the two officers that he had coached a lot of “coppers” to swim over the years and that he had a good relationship with the police. The applicant told the police that he was unwell and that he had throat cancer adding that he was last in hospital a couple weeks prior to the conversation.

126. In relation to reporting in accordance with his bail conditions the applicant told the police that when he reported he took with him each time a copy of his bail receipt. The applicant then asked the police if they would like to see his receipts and he stood up and walked away from the kitchen table. A short while later he came back with a folder which appeared to contain numerous pieces of paper. The applicant showed the documents at the top of the folder to the police describing the contents as weekly receipts for his bail reporting. The applicant asked the police if it was a good idea for him to keep those documents and they told him that he did not need to because the police recorded each visit on the computer, but said that it was up to him if he wanted to keep the papers or not. On the topic of the applicant’s complaints about the bail conditions the police recommended that he speak to his lawyer to apply to vary the conditions. The applicant then joked that his lawyers thought that it might be better for him to die before the court matter progressed and then volunteered that he had previously taught his solicitor, Mr Bryan Wrench, to swim many years previously.

Applicable legal principles

127. I am required to undertake a predictive task in determining the application for a permanent stay of the special hearing.

128. In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of a nature that nothing that a trial judge can do can relieve against its unfair consequences. It is well established that a permanent stay should only be granted in an extreme or exceptional case: Barton v R (1980) 147 CLR 75; Jago v District Court of New South Wales (1989) 168 CLR 23 at [34].

129. In R v Edwards [2009] HCA 20; (2009) 83 ALRJ 717 the High Court articulated the relevant test, by adopting the earlier decision in Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 as follows:

“… Whether, in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process”.

130. As was observed by the High Court in Edwards, the test is a high bar in that the court must be satisfied that the proceedings would involve an unacceptable injustice or unfairness, not that the proceedings could involve such an injustice or unfairness: Edwards at [23] – [24].

131. The categories of circumstances which may justify an order granting a permanent stay of criminal proceedings are not closed and are incapable of exhaustive definition. However, it is clear on the authorities that a stay of a criminal trial is an extreme remedy which will be reserved only for the most exceptional cases: Barton per Wilson J at 475; Jago per Mason CJ at 582.

132. The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].

133. The concept of fairness in the context of the stay requires more than a consideration of fairness to the accused. In R v RD [2016] NSWCCA 84 at [56] Bathurst CJ observed:

“In Walton v Gardiner, Mason CJ, Deane and Dawson JJ at [26], referring to Jago, stated that the question of whether criminal proceedings should be permanently stayed as an abuse of process falls to be determined by a weighing process involving the subjective balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice.”

134. Mason CJ referred to that balancing exercise in Jago at 33 stating:

“The test of fairness which must be applied involves a balancing process, for the interest of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial”.

135. The categories of circumstance in relation to which permanent stays of criminal proceedings have been granted has extended to a ground referred to as the common humanity ground. The test to be applied to stays based on common humanity, which is a type of abuse of process, was enunciated by the High Court in Subramaniam v R [2004] HCA 51 at [31] where the test was stated as follows:

“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.”

136. Although in Subramaniam the High Court rejected the ground of appeal relating to the stay, it stated at [35] that notwithstanding the manifest purposes of the then relevant legislation, which for relevant purposes was similar to the present MHCIFP Act, there may still be cases of mental infirmity calling for the grant of a stay even of a special hearing for which it provides although instances of them are likely to be rare. The High Court stated that that was so for two reasons namely the Act does not expressly or by implication forbid the application of stay principles to special hearings and because common humanity would argue in favour of a stay if the risk was real and the likely exacerbation grave.

137. It is important to recognise, as established by authority, that one purpose of the MHCIFP Act is an ameliorative one in that it provides a person who is unfit to be tried in the orthodox way an opportunity of being acquitted in a special hearing so that future legal proceedings against the accused can be brought to an end. It is also relevant that another purpose of the Act is for special hearings to actually take place, notwithstanding the unfitness of an accused to stand trial, so that victims might be afforded an opportunity to see a form of justice, no matter how imperfect that form of justice might be, with the restrictions and limitations associated with special hearings.

138. As the High Court further stated in Subramaniam at [28], although it is evident that special hearings have inherent deficiencies, particularly when an accused is unable to instruct their solicitors or fully participate in the proceedings, “no system of justice is perfect”.

Determination

139. The legal principles applicable to stay applications and to applications based on common humanity grounds were not in dispute between the parties. The issue between the parties and the issue which I must determine is how those principles ought to be applied in the circumstances of this case.

140. In the circumstances, the judgment required is an evaluative one with no precise criteria to guide it: Kitchingman v R [2023] NSWCCA 4 at [31]. It involves a binary choice: either the special hearing should be stayed or it should not.

141. The applicant in his submissions relied extensively on authorities in which the common humanity test had been applied to justify the ordering of a permanent stay. The applicant submitted that a number of those authorities were factually analogous to the present case and provided support for the application.

142. The applicant relied on R v Hakim (1989) 41 A Crim R 372 where proceedings were permanently stayed. There the accused, who was 58 years old, had a long history of ischaemic heart disease, a complete heart block, a bypass operation which resulted in serious complications and a range of physical neurological and psychological conditions. Mr Hakim had been confined to a prison hospital bed for six months immediately prior to and at the time of the stay application.

143. Unlike Hakim, the present applicant did not suffer from a complete heart block and had no bypass operation with complications. Although the present applicant is older and presents with similar cognitive defects as Mr Hakim, the present applicant has significantly better physical independence and significantly better ability to participate in the special hearing, in some limited form or other, than would an accused confined to a prison hospital bed.

144. The applicant also relied on R v Murray [2011] NSWDC 258 in which a special hearing was permanently stayed. In that case the accused was 81 years old and suffered from numerous medical conditions including severe ischaemic cardiomyopathy, unstable angina, he had numerous sequential pacemakers and was up to the 6th pacemaker at the time of the stay application, he suffered from deep vein thrombosis, cerebro-vascular accident, confusion, cognitive impairment, carotid artery disease and renal impairment. The medical evidence there from a cardiologist established that the amount of blood pumped through that accused’s heart was “low 30%” due to severe coronary disease and he remained in a high risk group for sudden cardiac death. His prognosis was a 30% to 40% chance of dying within one year and a 60% to 70% chance of dying within five years. One of the experts in that case when asked about the accused having had six heart pacemakers agreed with the proposition that that number was “extraordinary” describing that he had “never struck it”.

145. In addition the evidence in Murray established that the accused’s risk of cardiac arrest would be increased by the stress induced by a special hearing that was expected to run over several weeks. Further, the evidence in Murray established that the level of stress on that accused would be just as great if he was to sit at home wondering about the court case as it would be if he were required to be physically present during the special hearing proceedings.

146. That case can be factually distinguished from the present case in that there the accused had more significant heart disease and in the present proceedings the evidence established that this applicant would suffer significantly less stress if he was not required to personally attend proceedings.

147. The applicant also relied on the case of Arrivoli v R [2017] NSWDC 112 in which a permanent stay of a special hearing was ordered on the basis of common humanity. At the time of stay application in Arrivoli the accused was 94 years old and living in a nursing home. The medical evidence in that case established that he had moderate atrophy in the brain, including the temporal lobes, and a narrowing of the carotid artery. The accused there suffered from hypertension, ischaemic heart disease, asthma, glaucoma, chronic renal failure and osteoarthritis in his knees. Evidence from a clinical psychologist established that a number of that accused’s medical conditions were associated with cognitive impairment resulting in severe memory impairment and some impairment of executive functions, reduced reading speed and reduced visuospatial abilities. The accused’s visual and verbal memory were impaired, his activities of daily living were compromised and his recall of past events was unreliable. Ultrasound evidence established that the accused in Arrivoli suffered from a near occlusion of the internal carotid artery.

148. Less than two months before the hearing of the stay application in Arrivoli the accused was living in a nursing home, sitting in a chair and staring into space. The accused was described as not remembering the psychiatrist who attended him at the nursing home, having difficulty in rising from his chair, having involuntary tongue movements with his tongue protruding from his mouth, and slowing of physical movements with a fine tremor or Parkinson’s disease evident. The accused was also described as suffering from dementia and anxiety and that there was a significant risk if the special hearing proceeded, given his frailty, of him suffering a life-threatening cardiac event. There was evidence to establish and the court found that ameliorative measures, including a proposal that the accused only attend for a couple of hours each day and take prescriptive beta-blockers, would be insufficient.

149. In the present case the applicant, unlike the accused in Arrivoli, suffers only from mild dementia. In addition the applicant is considerably younger, does not suffer from severe memory impairment and does not have moderate cerebral atrophy. In addition, unlike Arrivoli who had a significant degree of difficulty in ambulating, the present applicant is able to walk, climb stairs, drive and converse without assistance.

150. The applicant also relied on R v Crawford (Unreported) Flannery DCJ 1 November 2018 in which a special hearing was permanently stayed. The accused in Crawford was 86 years old, was suffering from “severe dementia” and was described as being in a “vegetative state, barely rousable, he has no capacity to communicate or alternatively, if he does so, to communicate in a rational sense”. The accused in Crawford was completely dependent on nursing care for mobility, feeding and bodily functions, was verbally and physically disruptive, aggressive and prone to violent outbursts. The evidence in Crawford established that if he was required to attend court a full body lifting machine and three staff members would be needed to move him from his nursing home and bring him to court and that whilst in court he would need to have regular health checks.

151. Unlike Crawford, here the applicant suffers from mild, not severe, dementia. The present applicant is not in the full-time care of a nursing home and does not require assistance with feeding, mobility and bodily functions. Rather the evidence, including the affidavit evidence from the applicant’s solicitor and the evidence contained on the footage tendered by the Crown, establishes the applicant is capable of some degree of independent living, engages in shopping, is at home by himself during the day whilst his wife is at work. It also establishes that the applicant reports to the police independently every Monday and is capable of walking, climbing stairs and driving. In addition the applicant is capable of reporting, apparently intelligibly and coherently, to the police when he attends the police station each Monday and was able to engage in a generally intelligent and rational conversation, during which he volunteered relevant information, when the police attended his house on 5 May 2024.

152. The applicant also relied on R v O’Neill (No 2) [2023] NSWDC 572 in which special hearing was permanently stayed. In that case the accused was 89 years old, resided interstate, was largely wheelchair bound and relied on the assistance of his son for most of his day-to-day living activities. In addition there the accused suffered from various mobility issues caused by hip complications, osteoporosis and previous fractures as well as from Parkinson’s disease. He had difficulty transferring into and out of his wheelchair due to weakness, pain and the sequela of his Parkinson’s disease. The accused in O’Neill also suffered from mental health issues and had attempted suicide “multiple times in the past 12 to 18 months”. Psychiatric evidence established that he met the criteria of post-traumatic stress disorder and recurrent major depressive disorder and that he had long-term depression and anxiety symptoms exacerbated by his worries about the current proceedings.

153. Psychiatric opinion also established that the accused in O’Neill was likely to become more depressed and anxious as the trial approached, raising the risk of suicide levels to “much higher” than those experienced on average by a man of his age. Medical opinion in O’Neill established that that accused’s persistent depression with suicidal thoughts, disturbed thinking and severely impaired judgment resulted in a worsening of his mental state as the pending trial approached and was likely to precipitate further suicide attempts.

154. The present applicant is significantly younger than the accused in O’Neill. In addition unlike the accused in O’Neill the applicant is not wheelchair bound, is not reliant on others for most of his daily living activities, does not suffer from Parkinson’s disease, does not have impaired mobility to the same degree and does not have a life expectancy described in O’Neill as being “optimistic” for him to survive a single further year until his 90^th birthday. In addition the present applicant is able to care for himself for periods of time, in particular during the day while his wife is at work, he is mobile, he drives independently and he is capable of engaging in conversation.

155. A further distinction between the present case and O’Neill, relied on significantly by the Crown, was that the accused in O’Neill had already faced trial, been found guilty and served a sentence of imprisonment for similar conduct as the outstanding charges and involving the same complainant. I accept that that feature of O’Neill reduced the significance of the public interest in the balancing exercise of the various relevant factors. That is so because the public interest in bringing O’Neill to justice had already been satisfied to a significant degree.

156. Here the only basis upon which the stay of the special hearing is sought is the common humanity ground. There is no evidence, and counsel appearing for the applicant made no submissions, relating to any delay on behalf of the prosecution, any forensic disadvantage by reason of the loss of or destruction of any evidence or any other forensic disadvantage.

157. There was no evidence to establish that the applicant had not provided his solicitors with some instructions. There was no evidence to establish that the applicant’s solicitors were unable to cross-examine prosecution witnesses or to make forensic decisions as a special hearing progressed.

158. The Crown fairly acknowledged that the applicant was in poor physical and mental health and that the court is required to consider the combined circumstances of the applicant’s physical health, mental infirmities and the opinions relating to the effect that proceeding with the special hearing might have on the applicant’s health and suicidal ideation.

159. However these issues need to be considered bearing in mind the applicant is to be tried by way of a special hearing and the principles enunciated by the High Court in Subramaniam, and as applied in the New South Wales Court of Criminal Appeal in Kitchingman must be followed.

160. The applicant’s physical health is clearly significantly compromised. His cardiovascular health is compromised and he has suffered from a number of strokes. Those conditions have resulted in some degree of brain damage and had some impact on his cognitive functioning. In addition there is no doubt that stress associated with continuing legal proceedings may well have an impact on exacerbating the applicant’s cardiovascular conditions and may bring an increased risk of further strokes.

161. The applicant’s progressive and untreatable cancer is also relevant in that it has reduced his life expectancy to about a 20% chance of living for five years.

162. The applicant’s mental disorders are also significant. His depression, anxiety, cognitive decline and suicidal ideation are significant. Although the applicant has been diagnosed with dementia it is relevant that at present it is described as mild dementia and at an early stage.

163. The applicant’s stated intention to commit suicide is highly concerning. The fact that he has reported to numerous doctors, as is confirmed by evidence from his wife, that he attempted to commit suicide some time ago by carbon monoxide poisoning and more recently by an overdose which he described as not requiring attention because he did not tell anyone about it, establishes the genuineness of his ideation.

164. In relation to the risks of any further suicide attempt by overdose, that risk appears to have been largely addressed by placing the applicant’s medication in a Webster Pack which is in the possession of and controlled by his wife and nurses. No doubt those steps have reduced, although I accept not completely eliminated, any future risk of the applicant stockpiling medication for future overdose attempts.

165. The applicant’s suicidal ideation has been reported by him to numerous doctors as being directly related to shame and humiliation associated with these allegations. As Dr Rosenfeld accepted, the applicant will continue to experience stress even if a stay of the special hearing is ordered, because he understands sufficiently enough about the process to know that a stay will not result in a finalisation of the allegations and he knows that they will remain unresolved. It appears that the applicant has expressed a sufficient understanding of his present legal predicament to understand the consequences of a stay being granted and, conversely the consequences of a stay not being granted.

166. In addition he has expressed sufficient cognitive functioning to express to his medical practitioners the shame, humiliation and embarrassment that he will feel if the matter proceeds because of the public airing of the allegations. Dr Rosenfeld accepted the proposition that that established that the accused had sufficient cognitive functioning to understand the inverse proposition, namely he would understand that if a non-publication order was made there would be less reason for him to feel shame and embarrassment.

167. On the issue of the applicant’s physical and cognitive abilities I take into account that in very recent days the applicant has been observed walking, climbing stairs and driving a motor vehicle without physical impairment and reported to police in accordance with his bail conditions without any apparent cognitive difficulties. I also take into account that the applicant has very recently engaged in a largely coherent, logical and intelligent conversation with police lasting 20 minutes. Although Dr Rosenfeld said that a person with cognitive impairment may be able to do so with sufficient prompting and cues, that recording establishes that during the 20 minute discussion the applicant volunteered relevant information, including his complaints about his bail conditions in two respects, volunteered to show the police his bail reporting receipts, obtained a folder containing those receipts, questioned the police about whether he should continue to obtain and retain such receipts and made numerous comments indicating some recollection of past swimming students including police officers and one of the solicitors employed at the law firm acting for him.

168. That evidence, together with the evidence establishing that the applicant spends much of the day caring for himself while his wife is at work and is able to engage in some independence in driving to shops, shopping and driving to and from his home and the shops, establishes that the applicant has a significant degree of present physical ability, some periods of lucidity and some degree of executive cognitive functioning.

169. On the issue of stress and anxiety caused by the applicant’s participation in the special hearing I take into account Dr Rosenfeld’s evidence that there are a number of possible scenarios which would have a drastic and marked effect in reducing those stress levels and the consequential impact that stress and anxiety might have on the applicant’s health. I have already referred to those scenarios and Dr Rosenfeld’s estimate of the stress levels occasioned to the applicant associated with each of those scenarios. Most significantly, the stress levels associated with the applicant not being required to attend court, either in person or via AVL, reduced the expected stress levels to towards the very bottom of the scale and, if superimposed with a non-publication order, Dr Rosenfeld was of the opinion that that reduced the applicant’s stress level to the lowest figure possible.

139. The court must be satisfied that a continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process; the mere risk of unacceptable injustice or unfairness is insufficient: R v Edwards at [23]; TS v R [2014] NSWCCA 174 per Leeming JA at [1].

140. Although I accept that on the evidence there is a possibility that continuing the special hearing could result in an abuse of process, I am not satisfied that the evidence establishes that it would do so. Here the evidence is insufficient in that it only establishes a mere risk.

141. In the present circumstances the case is not so extreme or exceptional as to justify the granting of a permanent stay. Here the applicant’s physical and mental conditions, even accepting a deterioration in those conditions, do not result in it being out of accord with common humanity to allow the matter to proceed by way of special hearing. I do not find that the common humanity basis for the application operates in favour of granting the stay. The risks to the applicant’s health are not such that a continuation of the proceedings amounts to an abuse of process.

142. In addition, his health conditions, although significant, can be moderated and ameliorated if an order was to be made under s 56(8) of the MHCIFP Act, which permits a court to allow a defendant in a special hearing to not appear, or to exclude a defendant from appearing, if the court thinks it appropriate in the circumstances and if the defendant, or alternatively the defendant’s legal practitioners agree. On the basis of Dr Rosenfeld’s evidence such an order, if it were to be made, would significantly reduce the stress and anxiety that would otherwise be caused to the applicant. Of course whether or not such an order is to be made depends on agreement either from the applicant or from his legal practitioners. The time for considering the application of s 56(8) and the time for either the defendant or his lawyers to agree to such a course has not yet arisen. As indicated during the hearing of the stay application, in all the circumstances, this court would likely agree to make such an order under s 56(8). Whether or not the defendant or the defendant’s lawyers agree to the making of such an order is yet to be determined. Relevantly however, if they do agree and an order of that type is made, on the basis of Dr Rosenfeld’s evidence the applicant’s stress levels are likely to be significantly reduced.

143. In addition the court has power under s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) to make a non-publication order to prohibit or restrict the publication of disclosure of the name or of information tending to reveal the identity of any party to the proceedings. The grounds on which such an order can be made include where necessary to prevent prejudice to the proper administration of justice (s 8(1)(a)) and where necessary to protect the safety of any person (s 8(1)(c)). As indicated during the stay application this court is likely to be amenable to the making of such an order restricting the publication of the applicant’s name. Significantly, based on the evidence of Dr Rosenfeld a non-publication order restricting the naming or identification of the applicant would have a drastic effect in reducing the applicant’s likely stress levels if any special hearing would proceed. The time for consideration of the making of such an order has not yet arisen. Whether the applicant’s lawyers seek such an order or indeed whether such an order might be made of the court’s own motion is not for present determination.

144. In all the circumstances having regard to the entirety of the evidence I consider that the common humanity ground, the substantial public interest in having those charged with serious criminal offences brought to trial and the need to maintain public confidence in the administration of justice, all weigh in favour of the dismissal of the application.

145. Proceeding with the special hearing would not be “out of accord with common humanity”.

Orders

177. The application is dismissed.

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Amendments

29 July 2024 - para [61] line beginning 'Exhibit 2' amended: "2023" removed, "2022" added.

19 September 2024 - para [139] added "to" after applicable

Decision last updated: 19 September 2024