R v W

[2009] NSWDC 124

CITATION:	R v W [2009] NSWDC 124
HEARING DATE(S):	1 - 5 June 2009
JUDGMENT DATE:	5 June 2009
JURISDICTION:	Crime
JUDGMENT OF:	Murrell SC DCJ
CATCHWORDS:	Application for permanent stay - Allegations of old indecent assault - Delay - Mental impairment of applicant - Loss of evidence
LEGISLATION CITED:	Crimes Act 1900 s 578A
CASES CITED:	Austin (1995) 84 ACR 374 Barron v Attorney General for NSW (1987) 10 NSWLR 215 Barton v The Queen [1980] HCA 48 Basha (1989) A Crim R 337 Boulos v R [2008] NSWCCA 119 Jago v District Court of NSW (1989) 168 CLR 23 Hakim (1989) 41 ACR 372 Kesavarajah v R [1994] HCA 41 R v Carver [1999] NSWCCA 135 R v Littler [2001] NSWCCA 173 R v Presser (1958) VR 45 R v Westley [2004] NSWCCA 192 R v WRC [2003] NSWCCA 394 The Queen v Davis (1995) 57 FCR 512 The Queen v Edwards [2009] HCA 20 Walton v Gardner (1992-3) 177 CLR 379 Williams v Spautz (1991-92) 174 CLR 509
PARTIES:	Regina W
FILE NUMBER(S):	2008/00019429
COUNSEL:	R Sweet of Counsel for the Applicant A Seeto of Counsel for the Crown
SOLICITORS:	Galloways Solicitors Department of Public Prosecutions

The Application

1 The applicant pleaded not guilty to two offences that, between June and December 1978, he committed an act of indecency towards the complainant who was then under the age of 16 years. He pleaded not guilty to a further offence that, between June and December 1978, he indecently assaulted the complainant who was then under the age of 16 years.

2 It is alleged that the complainant was abused when she and her sister were staying at their father's home for a period of about two weeks in or about the October 1978 long weekend/school holidays, just after the complainant's sister was treated for an injury at the Bowral Hospital. At the time, the applicant (the complainant's older half brother) was living at the premises. The incident occurred at night.

3 If the matter proceeds to trial, the applicant intends to adduce alibi evidence that, during the relevant six-month period, he was not at the premises where the offences allegedly occurred, except for a period of approximately two or three weeks during early November 1978 when the complainant was not at the premises.

4 The applicant seeks a permanent stay of the proceedings. He relies on the delay in commencement of the prosecution, prejudice arising from the inability to call relevant witnesses due to their death, mental deterioration or the inability to locate the witnesses, the loss or destruction of relevant documents, and cognitive impairment associated with physiological and psychiatric conditions from which he suffers.

The Law

5 The Court has inherent jurisdiction to permanently stay proceedings that are an abuse of process: Barton v The Queen [1980] HCA 48. The onus is on an applicant to satisfy the Court that any trial would necessarily involve an abuse of process: Barron v Attorney General for NSW (1987) 10 NSWLR 215. The onus is "a heavy one" and the power to stay will be exercised "only in the most exceptional circumstances": Williams v Spautz (1991-92) 174 CLR 509 at 529. A permanent stay of criminal proceedings is "a wholly exceptional intervention into the processes of the criminal law": R v WRC [2003] NSWCCA 394 at [55].

6 The power to grant a permanent stay is discretionary: Basha (1989) A Crim R 337 per Hunt J at 339. The exercise of the discretion involves balancing the interests of the community and those of the applicant. There is a strong public interest in ensuring that persons accused of serious offences face trial: R v Carver [1999] NSWCCA 135 at [33]. Unless the interests of justice demand it, courts should exercise, rather than refrain from exercising their jurisdiction to try persons charged with criminal offences: Williams v Spautz at 519.

7 However, the public interest in holding a trial does not extend to holding an unfair trial: Jago v District Court of NSW (1989) 168 CLR 23 per Mason CJ at 30. An abuse of process occurs when a trial is incapable of serving its purpose, i.e. is incapable of finally determining whether the accused engaged in the alleged criminal conduct: Jago per Brennan J at 47. A stay will be justified where any trial "will necessarily be an unfair one or ... the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process": Jago per Deane J at 60. The notion of fairness (or unfairness) "defies analytical definition" and is largely a matter of "essentially intuitive judgment": Jago, per Deane J at 57.

8 No narrow view of an abuse of process is appropriate: WRC at [54]. Before a stay may be granted, there must be "a fundamental defect which goes to the root of the trial", such that the trial judge will be unable to address the unfairness: Barton per Wilson J at 111, Jago per Mason CJ at 34, R v Littler [2001] NSWCCA 173 at [5]. There must be no available means of bringing about a fair trial. Usually, a trial judge’s responsibility to avoid unfairness can be discharged by controlling the trial procedures, especially by giving directions to the jury that are designed to counteract any prejudice that the accused might otherwise suffer: Jago per Brennan J at 47.

9 On a stay application, it is relevant to consider the strength of the prosecution case: Walton v Gardner (1992-3) 177 CLR 379 at 393, Davis at 519.

10 The circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition: The Queen v Edwards [2009] HCA 20. However, delay and associated general prejudice will not create an abuse of process. Actual prejudice must be established: R v Westley [2004] NSWCCA 192 at [12].

11 In relation to criminal proceedings, delay is not infrequently associated with the death of witnesses, memory loss, or the loss of documents. When an absent witness's likely evidence is not known, any disadvantage arising from the witness's absence is speculative, and abuse of process cannot be established: Edwards at [33], Boulos v R [2008] NSWCCA 119 at [52]. Where delay has resulted in the loss of evidence by which a complainant’s credibility might be tested, the issue can usually be addressed by an appropriate warning to the jury: Austin (1995) 84 ACR 374.

12 However, stays have been granted where delay has resulted in the loss of exhibits that had an immediate and direct bearing on critical events. In The Queen v Davis (1995) 57 FCR 512, the trial of a doctor on old sexual indecency charges was stayed because of prejudice arising from the destruction of contemporaneous medical notes concerning the alleged patients/victims.

13 In Hakim (1989) 41 ACR 372, the Court of Appeal upheld the grant of a stay where a two to three-year delay in prosecution coincided with a deterioration in the accused’s physical and mental condition such that "it would offend common humanity" to require that the accused stand trial. However, in the leading Court of Appeal judgement at 377, Kirby P stated that it was only in "a rare case” that the physical or mental condition of an accused would cause a court to grant a stay. In WRC at [53] Spigelman CJ observed that, since Hakim, the High Court had “elaborated upon” the principles relevant to the grant of a stay and noted that "no narrow view of an abuse of process" was appropriate when considering a stay application. Cases following Hakim have not applied a test of “offence to common humanity".

14 In this case, the accused relied heavily on the decision of the Court of Criminal Appeal in Littler. The Crown alleged that the 74 year-old accused had committed sexual offences as long as 41 years before he was charged. The Court stayed the proceedings, largely on the basis of psychiatric and physical problems affecting the ability of the accused to defend himself at trial. At 527, Adams J stated:

"The ability to give evidence coherently and fluently, without substantial hesitation and qualifications, to remember the evidence previously given in the trial by other witnesses as well as one's own testimony, quickly understand questions asked both in examination-in-chief and cross-examination and formulate responsive and consistent answers are all vital to an accused. In all this, concentration and short-term memory are crucial. Juries are quick to see hesitation as playing for time, qualifications as lack of candour, and inconsistencies as proof of fabrication. It is very difficult to dispel the negative impression these factors may create, entirely unfairly though this might be. This will not necessarily mean that the trial will be unfair, let alone that it should be stayed, but, where it results from or is connected with a substantial delay not due to the accused, it must be considered, together with the other substantial prejudicial circumstances … "

The Delay and Loss of Evidence

15 In this case, the delay between the alleged events and the first complaint to police is disturbing, as is the delay between the police complaint and charging.

16 The complainant says that she did not begin to recall the abuse until she was 14 years of age, when she started having nightmares and flashbacks about the applicant. She did not recall details of the abuse until she was 15 years of age. The complainant's older sister recalls a complaint made by the complainant on the day after an alleged incident.

17 In 1992 the complainant's older sister complained to police that she herself had been abused. The complainant was called in the 1993 committal proceedings concerning her sister's complaint (the complaint was dismissed at the committal stage), but it was not until June 2004 that the complainant told police that she had been abused.

18 The circumstances in which the complainant came to recall the alleged abuse and the delay in complaint present difficulties for the Crown case. Otherwise, it is a typical case of alleged sexual abuse where the Crown case depends on the evidence of one critical witness. The Crown case is not strong.

19 Between June 2004 and September 2006, police took an additional statement from the complainant but otherwise did not pursue the matter. In September 2006, the matter was referred to the current officer in charge, who took several statements over the ensuing 15 months. In January 2008, there was a "pretext" telephone conversation between the complainant and the applicant in which the applicant made what are alleged to be general admissions of misconduct. The applicant was charged in January 2008.

20 The complainant's father died in 1991. Consequently, he is unavailable to give evidence as to the period during which the complainant and her sister stayed at his residence and whether the applicant was there at that time.

21 At the time of the alleged abuse, the complainant's parents were separated. The complainant's mother is still alive but suffers from dementia.

22 Mr Edwards and Mr Austin, other potential witnesses, are unavailable because they died in about 1991 and July 2008 respectively. They lived with the applicant during part of the second half of 1978. According to the applicant, they could have given evidence that, during the latter part of 1978, the applicant resided at Mortdale and Penshurst and did not stay overnight with the complainant's father (the applicant's stepfather) except for a few nights in November 1978.

23 The applicant refers to the loss of other potential witnesses of less significance.

24 Any relevant records of Bowral Hospital have been destroyed. Records of counselling sessions and the clinical notes of the complainant’s admission to Prince Henry Hospital in 1988 (following an alleged attempted suicide) have been destroyed.

25 The applicant may very well be disadvantaged by the loss of significant witnesses and documents.

26 However, both as to the missing witnesses and as to the lost documents, the substance of the evidence is not known. It may have supported the Crown case. Further, apart from the Bowral Hospital records, the lost medical material probably falls within the definition of "counselling communication" in section 296(4) of the Criminal Procedure Act 1986. Had the material not been lost, objection could have been taken to its production pursuant to Division 2 of that Act.

27 As to the unavailable witnesses, witnesses with knowledge of the applicant's residence and movements in the latter part of 1978 remain available. In particular, in 1978 the applicant's now wife was an almost constant companion of the applicant. She recalls where he lived and the periods during which he visited and stayed with the complainant's father. The applicant's sister-in-law has some knowledge of the applicant’s movements at the relevant time, but due to the lapse of time she lacks a detailed recollection.

28 The applicant did not contribute to the delay.

29 Despite the appalling delay, the associated loss of witnesses and documents and the impact of the delay on the memory of witnesses, I cannot conclude that any trial will necessarily be unfair. Directions can be given to address the forensic disadvantage suffered by the applicant.

The Applicant’s Physical and Psychological Condition

30 The extensive psychological and psychiatric evidence does not raise any doubt about the applicant's fitness to be tried in the R v Presser (1958) VR 45 sense. Some of the material in Dr Rowe’s report appears to suggest that there may be a Presser issue, but in oral evidence Dr Rowe made it clear that he was addressing the issues raised in Littler. Consequently, it is not incumbent on the Court to enquire into the applicant’s fitness to stand trial: Kesavarajah v R [1994] HCA 41.

31 The applicant is 54 years old but presents as a much older man. Following a serious motorcycle accident in 1981, the applicant became depressed and began to experience occasional panic attacks. In the accident, he sustained a serious back injury. Since then, he has experienced chronic back pain. Between 1981 and 1984, the applicant undertook stressful work as a police officer. That work exacerbated his depression and panic attacks. In 2005, he underwent a quintuple bypass. He is a poor sleeper, obtaining only about four hours sleep a night.

32 On 8 April 2009, Mr Cipriani, a clinical psychologist, assessed the applicant by administering the Minnesota Multiphasic Personality Inventory (MMPI-2) and obtained a profile suggestive of a major depressive disorder. He said that the applicant may have associated cognitive impairment affecting attention and concentration, but he did not assess the applicant's cognitive function. Dr Rowe, a consultant neuro psychologist, considered the profile obtained by Mr Cipriani and administered further tests on 13 April 2009. He concluded that the applicant suffered from chronic dysthymia (low-level depression) and a major depressive disorder, which he characterised as severe. He reported that the applicant's severe depression meant that he had difficulty comprehending and following arguments and evidence, difficulty accurately and fluently communicating his version of the facts, and was distractable and inattentive. The applicant's ability to perform simple cognitive tasks was within normal limits, but his ability to perform complex tasks was significantly compromised. Dr Rowe’s main concern was that the applicant would seriously disadvantage his case by performing poorly in court.

33 Associate Professor Glozier, who saw the applicant on 31 May 2009 and reported on behalf of the applicant, noted that cardiovascular disease is a strong risk factor for the onset of cognitive impairment. He concluded that the applicant had a chronic dysthymic disorder with periodic depressive episodes. Currently, the applicant was suffering an episode of major depression. Associate Professor Glozier characterised the episode as moderate rather than severe, but said that it inclined towards the severe end of moderate depression. He did not characterise the episode as severe because it was not severely impairing the applicant's personal, social or occupational functioning. He said that the applicant had a borderline impairment of concentration and short-term memory attributable to his psychiatric order, and that the impairment may hinder the applicant's ability to give evidence coherently and fluently.

34 On 8 May 2009, Professor Greenberg assessed the applicant by reference to the Presser criteria and found that he comfortably met those criteria. He diagnosed the applicant as suffering from a mild to moderate depressive disorder, partly associated with chronic backache. He said that the applicant's attention and concentration was impaired by stress, depression and pain but that the impairment was not substantial.

35 There is no suggestion that the applicant exaggerated his physical or psychological difficulties.

36 The applicant's psychological condition has impacted on his domestic, social and occupational activities. He does not want to socialise. He works 30 hours a week as a telemarketer. However, he has difficulty learning complex new tasks. He has applied for a promotion to the position of supervisor but does not anticipate being selected because he has been unable to master the necessary computer skills.

37 The issue is whether the delay and associated forensic disadvantage together with the applicant’s cognitive impairment (which developed after the alleged abuse and may well have become worse after the 2005 bypass operation) are such that any trial will necessarily be unfair.

38 The applicant gave evidence and was cross-examined on the stay application. My observation of the applicant assisted me to understand the import of the expert evidence regarding cognitive impairment. The applicant hesitated before providing some answers. Some questions had to be clarified. However, overall the applicant acquitted himself reasonably well.

39 In the context of subsequent decisions affirming the importance of trial by jury and confirming that it is only in an extreme case that a stay of proceedings will be granted for abuse of process, there must be some doubt about whether the considerations to which Adams J adverted in the above passage from Littler can found the grant of a stay. Regardless of whether such matters are capable of founding the grant of a stay, it is my view that, in this case, when considered in combination with other forensic disadvantages flowing from the delay, the applicant’s cognitive impairment is not such that any trial will necessarily be unfair. I am alert to the applicant’s cognitive difficulties and will ensure that the trial process is such that he suffers no significant disadvantage because of his cognitive difficulties.

40 The application for a permanent stay of proceedings is refused.