R v Sexton No. Sccrm-99-85 - [2000] SASC 379

R v SEXTON
[2000] SASC 379

Criminal (Ruling)

1................ OLSSON J....... This is a renewed application by the accused Sexton for a stay of proceedings. He contends that the state of his health is such that it would be tantamount to an abuse of process to expose him to the trauma of undergoing a trial before a jury and the likely physical consequence of so doing. He seeks to invoke the “common humanity” test discussed by the New South Wales Court of Appeal in Frank Hakim and Another (1989) 41 A Crim R 372 ("Hakim").

The background to the application has been canvassed by me in R v Burns & Ors (No 2) [1999] SASC 511 ("Burns No 2") and also the Court of Criminal Appeal in R v Sexton [2000] SASC 276 ("Sexton No 1"). Accordingly it is unnecessary to retrace, in extenso, the ground there covered. I will merely touch on certain of the relevant historical highlights.
The accused was originally arraigned before me, jointly with three other persons (Burns, Collins and Savenkoff), on a charge of being knowingly concerned in the importation into Australia of a prohibited import, namely about 35 kgs of compressed cannabis head.
In November 1999 he made application for a permanent stay of the prosecution against him on the ground of his ill-health or, alternatively, either that all proceedings be stayed until further order, or, for an order that his trial be adjourned or postponed until such time as he was medically fit to attend it.
At that stage, considerable debate ensued as to whether or not the application attracted operation of the provisions of s 20B of the Crimes Act 1914 (Cth). In Burns No 2 I held, inter alia, that the medical evidence then before the Court did not, in the relevant sense, indicate that the accused was unfit to be tried. No reasonable jury, properly instructed, could rationally find that he was so unfit. I therefore rejected the application.
Early in 2000 the accused renewed his application. He sought to adduce additional medical evidence to establish the proposition that requiring him to participate in what would obviously be a long and stressful trial would be likely to precipitate serious physical and/or mental symptoms which, in practical terms, rendered him unfit to be tried. I therefore empanelled a jury, in accordance with s 20B, to determine whether he was unfit to be tried. On 7 March 2000 a jury enquired into that issue. It ultimately returned a verdict that it was not satisfied that the accused was unfit to be tried.
The trial of all four accused was listed to commence on 13 March 2000, following the rejection by me of an application by Sexton for leave to appeal against the jury verdict or, alternatively, a stay. A jury was empanelled on the afternoon of that day and the trial stood over to the following morning.
On 14 March 2000, immediately before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sexton No. Sccrm-99-85

Details

AGLC: R v Sexton No. Sccrm-99-85 [2000] SASC 379
Case: [2000] SASC 379
Decision Date: 8 November 2000

CaseChat Overview and Summary

The case of R v Sexton is a criminal proceeding before the Supreme Court of South Australia. The defendant, Sexton, sought a stay of the proceedings due to his ill health, which he claimed would make undergoing a trial a traumatic experience likely to cause serious physical consequences. The application invoked the "common humanity" test, which was discussed in the New South Wales Court of Appeal case of Frank Hakim and Another. The background to Sexton's application has been previously addressed in R v Burns & Ors (No 2) and R v Sexton (No 1).

The legal issues before the court were whether Sexton's health condition justified a stay of the proceedings and whether the trial judge or a jury should decide the matter. The court needed to consider the relevant legal tests and principles, particularly the "common humanity" test, to determine if staying the prosecution would be an appropriate course of action.

The court considered the medical evidence provided by Dr Bronte Ayres, a specialist cardiologist, who had previously testified before the jury. Dr Ayres testified that Sexton's condition, although serious, had not significantly deteriorated and was relatively stable. He could live a normal life if he maintained his medication regime and avoided excessive physical and emotional stress. The court accepted Dr Ayres' evidence and noted that special arrangements could be made to accommodate Sexton's needs during the trial. However, the court concluded that Sexton's situation was not as extreme as that in Hakim, and therefore, did not warrant a stay of the prosecution. The court found that the stress of the trial might induce symptoms, but it was not any more likely to do so than the normal exigencies of life. The court denied the renewed application for a stay and scheduled the trial to commence on 14 November 2000.

Orders