R v Sexton No. Sccrm-99-85

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 the jury entered the Court room, Sexton, who appeared highly distressed as a consequence of the conduct of certain TV camera crews outside the Sir Samuel Way Building, complained that he was unwell. On the advice of a Sheriff's Officer, who possessed qualifications as a trained nurse, the accused was evacuated to hospital, where he remained for some time, undergoing tests.
With the concurrence of the prosecution and the other co-accused, the trial of Sexton was ultimately severed and adjourned sine die, until a proper assessment of his condition could be made. The trial proceeded against his co‑accused and extended over a period of some 84 sitting days. All were found guilty of charges against them.
On 16 May 2000, the accused sought to agitate the situation before a Court of Criminal Appeal. In the result, that Court directed that I state a case for the opinion of the Full Court as to the applicability to the situation of s 20B of the Crimes Act. I therefore stated such a case.
As appears from Sexton No 1 the Court of Criminal Appeal eventually held that:-
"If the trial judge concludes that there are reasonable grounds to suppose that the accused is mentally unfit to stand trial, then the matter is to be determined by a jury. If there are no reasonable grounds to suppose that the accused is mentally unfit to stand trial, but other matters are raised in the inherent jurisdiction to stay the trial, the issue is to be determined by the trial judge alone according to the procedures applying under Rules 8 or 9 of the Supreme Court Criminal Rules".
The trial of the accused was listed to commence on 13 November 2000.
On 31 October 2000 he renewed an application for a stay and called Dr Bronte Ayres, a specialist cardiologist, to give evidence on his behalf. Dr Ayres had also given evidence before the jury on 7 March 2000 and, in effect, updated the situation as it had developed from that point. In preparation for so doing he had both reviewed the hospital files bearing on the events of and subsequent to 14 March 2000 and also seen and examined the accused a few weeks ago. I was requested by counsel to have regard to the evidence which Dr Ayres had given before the jury, as if he had reiterated such evidence on this occasion.
As had been the situation on 7 March 2000, Dr Ayres was a most impressive and objective witness. I have no hesitation in accepting the thrust of what he had to say.
I prefix a review of his evidence by noting that it is common ground that:-
if the trial proceeds, the accused will not have counsel and will need to conduct his own defence, with such assistance as I can and should properly render him;
that trial will be much shorter and of much narrower compass than the trial involving his co-accused. It is estimated that it will run for about three weeks;
the bulk of the evidence will be objective, circumstantial evidence, not involving substantial issues of credit, save, perhaps, for one witness; and
if the trial proceeds, steps can and will be taken by me to ensure the immediate availability of trained nursing assistance and equipment such as oxygen breathing and apparatus, and that adequate breaks are scheduled to avoid undue physical and emotional burdens on the accused.
In Burns No 2 I set out a description of the accused’s physical condition, as testified to by Dr Brown, another cardiologist. I did not take Dr Ayres to quarrel with the substance of such summation.
It is beyond question that the accused exhibits quite extensive coronary disease. This and the incidents of it are described in Burns No 2. It is unnecessary to repeat what I there said. Although that description reflects evidence originally given by Dr Brown, I do not take Dr Ayres to dissent from it, in general terms.
When he gave evidence before the jury on 7 March 2000, Dr Ayres made the point that the accused was being treated for depression as well as being medicated in relation to his coronary condition. He said that he was somewhat surprised that a cardiac ultrasound revealed little residual heart muscle damage and noted that the heart was pumping reasonably well. On the other hand, the accused did not respond well to stress on the treadmill equipment. He rapidly became breathless. He looked sweaty and unwell, but did not exhibit angina pain.
In the course of my summing up to the jury, I summarised the highlights of the evidence then given by Dr Ayres. I will paraphrase the points that I then made, as under.
Sexton is a man 69 years of age and comes from a family who has a strong history of heart disease of a genetic nature. He is hard of hearing and requires the assistance of a hearing aid.
He has quite serious heart disease in all three main coronary arteries of narrowing along its length. The minimum narrowing seems to be of the order of about 60%, and the maximum in one case, as I understand it, is 95%.
These narrowings are inoperable, although the symptoms arising from them at the moment are being treated by a series of drugs.
Sexton’s life expectancy is fairly uncertain, and he runs the risk of a coronary attack at some stage in the future. However, the onset of such an attack and his life expectancy are clearly unpredictable. That is in the nature of heart problems. Sexton had a minor coronary attack last August.
Having been made aware of the nature of the potential involvement of Sexton in the present proceedings Dr Ayres expressed the views that the types of stress involved in participating in the trial could well induce the same consequence as the recent treadmill test. It could result in Sexton feeling very unwell, and there is a possibility it could bring on some form of heart attack, although it is impossible know whether it will or will not. There is simply no way of predicting precisely what might occur. His condition is genetically based, and it will deteriorate over time. Present medical treatment is aimed at holding his current level of stability for as long as possible.
If the stress of the trial does produce the result which the doctor anticipates, Sexton will not, he says, cope well in the witness box, and may well have difficulty in coping with an adequate conduct of his case. He said that Sexton does not cope well with stress.
In discussing the problems that might be encountered in the course of a trial of the nature of that originally in contemplation, Dr Ayres said the danger lay in the time that it might take to get Sexton to hospital. At the very least there might be a need to make him lie down from time to time, there will need to be oxygen immediately available to him and some appropriately trained person to supervise him. The need was really to getting him to hospital rapidly if he exhibited acute symptoms. If he got there and had a heart attack, his chance of survival would be fairly reasonable.
When asked what impact giving evidence might have on the accused, Dr Ayres opined that his ability to cope would be limited and he will certainly, unequivocally, get flustered. He suspected that Sexton will feel very unwell, he will feel very threatened from a cardiac point of view, just like he was on the treadmill machine.
As to what risks might exist, the doctor commented:-
“I think for those of us who aren’t familiar with courtroom activity, I can't think of many other non-physical stresses that would be greater. I think that he will be having inputs that will be inducing stress at all times. It may not induce angina because of the medication, but I am sure it will push his heart levels and rate levels up to the levels I saw on the exercise machine that I perceive as being a risk to him. The risk is that he could have a prolonged episode of problems with his heart not pumping adequately and might develop fluid in his lungs. He may have a cardiac event” [By that I take it to mean a heart attack] “and it may block off one of his coronary arteries. This is supposition. It has happened to other people, but it may not happen to him.”
In the course of giving evidence in relation to the present application, Dr Ayres indicated that the hospital notes related to the accused, following the incident in Court on 14 March 2000, record that he suffered chest pain on admission and a brief period of transient global amnesia in relation to the events which precipitated his evacuation to hospital. Such amnesia is a syndrome known to be associated with certain types of stress related, emotional stimulus.
The doctor observed that, following the events of 14 March 2000, there did not appear to be any signs of substantial deterioration of the accused’s heart muscle and that the main sequelae of the incident had been emotionally based. Sexton received psychiatric assistance to assist him to overcome it.
There was no record of any significant coronary episode affecting the accused between 14 March and the present time. Although he does not handle stress well his condition is, currently, reasonably well controlled by medication.
As to the future, Dr Ayres was not able to add much to what he had earlier said. He could not accurately predict what may or may not occur, either within or outside of the Court room situation. Even given a shorter, less complex trial scenario and any assistance which I could render, the accused would find the trial a stressful process which could precipitate symptoms. What those symptoms might be and how acutely they might present themselves is impossible to foresee. The possibility of rapid medical intervention, if needed, remained an important consideration. In essence, the accused’s situation remained little unchanged from that which existed in March last.
The lastmentioned conclusion very much accords with my assessment of the accused. I have now had an opportunity of observing him on numerous occasions in the Court room situation over the last twelve months or so. His presentation appears not to have altered in any marked degree. He clearly has an excitable temperament and reacts badly to sudden stress, such as the specific incident which occurred on 14 March. On the other hand, up to that point, he handled himself well and with some assurance and apparent competence.
Against that background it is necessary to consider the test which should be applied to an application such as that now before me.
It is stating the obvious to say that is a very serious step to stay the prosecution of a person for a serious criminal offence, where, prima facie, there is a substantial apparent evidentiary basis for that prosecution.
In Hakim, the stay which was granted was the product of the combined impact of three compounding factors.
First, the prosecution had been guilty of quite dilatory conduct.
Second, the accused’s medical problems were far more profound than those of Sexton. Hakim had a long history of ischaemic heart disease, which had been complicated by a complete heart block. He had undergone a bypass operation some eight years prior to the proceedings and had suffered serious complications. He had a significant range of physical, neurological and psychological conditions. His prognosis was very poor such was his condition that he had been in the gaol hospital for six months and his condition was, manifestly, progressively deteriorating.
Third, an important factor was that Hakim's memory had undoubtedly been adversely affected by his condition and subsequent treatment.
As Kirby P (as he then was) said, although it will be a rare case in which intervening illness or the physical or mental condition of an accused will lead to a conclusion that it would offend common humanity to require that person to stand trial, the facts and Hakim's case justified such characterisation. In expressing his concurrence, Clarke JA emphasised the then steadily deteriorating medical condition of Hakim.
The instant case is by no means as extreme as that in Hakim. It seems to me that, for all practical purposes, Sexton's condition has not deteriorated significantly over the last 12 months and is relatively stable at the present time. He appears to be capable of living a fairly normal existence, provided that he maintains his current medication regime and does not over stress himself physically and emotionally.
As was demonstrated on the occasion of the commencement of the trial process, special arrangements can be made to have a Sheriff’s officer (who is also a trained nurse) and oxygen revival equipment in court and, if necessary, evacuation to hospital can be arranged relatively quickly. I can and would ensure that suitable breaks are taken during the morning and afternoon, to ease the pressure on the accused and that any other steps reasonably required to ensure his comfort are taken. Special arrangements can be made to facilitate his ingress and egress to and from the Court precinct in a manner which ought to avoid the media problems of the past.
Whilst I readily accept that, from time to time, the normal flow of a trial may need to be interrupted to accommodate symptoms exhibited by the accused, I remain unconvinced that his situation is so acute that common humanity demands that the prosecution be stayed. His situation is a far cry from that of Hakim.
In so concluding, I by no means ignore the possibility that some serious coronary incident could occur at any time; and that the stress of participating in even a much shorter and less complicated trial than that which was originally envisaged, may stimulate some symptoms. However the medical evidence leads me to conclude that the same type of incident could just as readily occur as a consequence of the normal exigencies of life.
The evidence does not warrant the granting of a stay on the situation as it now stands and the renewed application must be refused. The trial will commence on 14 November next. I will assist the accused in the conduct of his case as best I can, within the bounds of my duty and responsibilities in that regard.

[2000] SASC 379

8 November 2000