R v Wahlstedt (No 2) - [2005] SADC 87

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Application for Stay of Proceedings)
R v WAHLSTEDT (No 2)
Reasons for Decision of His Honour Judge Rice
21 July 2005
CRIMINAL LAW
Charges of unlawful sexual intercourse and indecent assault arising from events said to have taken place in the mid-to-late 1980's - complainant made a statement to the police in December, 1999 - denials by accused - accused's medical, psychiatric and psychological condition has been deteriorating over the past few years - earlier decision that accused not mentally unfit to stand trial - further deterioration - accused now unfit to stand trial - application for a permanent stay of proceedings on humanitarian grounds notwithstanding the application of Part 8A Criminal Law Consolidation Act 1935, in combination with lengthy delay causing prejudice.
Held: Application should be granted given accused's medical, psychiatric and psychological condition in combination with lengthy delay causing prejudice.
Criminal Law Consolidation Act 1935 Part 8A, ss 269A(1), 269J, 269M, 269MB(1); Supreme Court Criminal Rules rule 8; Crimes Act 1914 (Cth) Division 6, referred to.
R v Wahlstedt (2003) 231 LSJS 140; R v Touch [2005] SADC 65; R v Sexton (2000) 77 SASR 405; R v Burns (No. 2) (1999) 154 FLR 190; Subramaniam v R (2004) 211 ALR 1; R v WRC (2003) 59 NSWLR 273; R v Hakim (1989) 41 A Crim R 372; Williams and Others v Spautz (1992) 174 CLR 509; Walton v Gardiner (1992-1993) 177 CLR 378, considered.

R v WAHLSTEDT (No 2)
[2005] SADC 87
Introduction

This is an application for a permanent stay of an Information dated 6 March, 2000 whereby, under the Criminal Law Consolidation Act 1935 (CLCA), the accused is charged with three counts of indecent assault (s 56 CLCA) and five counts of unlawful sexual intercourse (s 49(3) CLCA). The application is made pursuant to rule 8 of the Supreme Court Criminal Rules.
It was submitted by Mr Boucaut, on behalf of the accused, that the accused was mentally unfit to stand trial by virtue of his physical infirmities and that, applying normal common law principles, the accused was entitled to a permanent stay of the proceedings as an abuse of the processes of the court. His submissions raised not only the question of whether those common law principles applied to an accused coming within Part 8A, CLCA, but also whether they could be applied before Part 8A is actually invoked.
On that latter point, the prosecution’s submission is that it is artificial to look at the issue of the exercise of the discretion to grant a permanent stay independent of, and prior to, an application of Part 8A.
This decision is to be read in conjunction with my decision in R v Wahlstedt (2003) 231 LSJS 140. In that decision I decided that the accused had not demonstrated, on the balance of probabilities, that he was mentally unfit to stand trial. Although I regarded the accused to be very much at the cusp of unfitness, I was partly influenced by the reduced sitting hours that were proposed to be adopted to ameliorate and take account of his physical infirmities. For reasons that I outline below, the trial was unable to proceed because of a deterioration in his medical condition and the emergence of a new condition, this time relating to his heart. In fact, due to reports obtained since the original ruling, the prosecution now adopts the position that the accused is mentally unfit to stand trial within Part 8A. The prosecution opposes a permanent stay and submits that the court should proceed to deal with the objective facts pursuant to s 269MB(1) CLCA.
I will also need to deal with another decision of mine in the case of R v Touch [2005] SADC 65 delivered on 16 June, 2005. In that case I refused an application for a permanent stay of proceedings where it was conceded on both sides that the accused was mentally unfit to stand trial by virtue of a mental illness. The mental illness prevented the accused even from attending for a consideration of the objective facts and, if she had attended, she was not in a position to provide instructions or give evidence. The accused was represented by counsel and, in my view, the trial of the objective facts could properly proceed in the absence of the accused.
Developments since the original ruling
I refer again to the original ruling relating to the accused’s physical infirmities and reproduce portion of it (para 35):-
The accused’s medical problems and medications are referred to above. It seems that his physical and mental state have deteriorated over the past few years. He has become prone to complex partial seizures, although this condition falls short of epilepsy. The medications that it is necessary for him to take induce drowsiness and perhaps sleep. Communication with him is not easy because of wandering concentration on his part. Questioning him is a slow process. He has short-term memory problems. His long-term memory problems seem less clear. There remains a significant question mark over the extent of both his short-term and long-term memory. Any on-going pain from his various conditions is dealt with by using strong pain-killers.
The current application for a stay of proceedings was preceded by additional reports concerning the accused’s condition. They are dealt with below but their contents caused me to investigate and review, of my own motion, whether the accused was mentally unfit to stand trial (s 269J CLCA) (TP10-11).
For reasons that I will explain, in my view the accused is mentally unfit to stand trial. As mentioned, the prosecution has conceded as much. I mention again that this is not a case of mental unfitness in the form of a mental illness. This accused has a number of physical disabilities which have led to cognitive problems, but not a mental illness within s 269A(1) CLCA.
Dr J. Said conducted a neuropsychological assessment of the accused in March, 2004. His initial assessment was not encouraging of Mr Wahlstedt upon such an application as the present in terms of cognitive impairment. He said this (p 7 of report dated 12 April, 2004):-
I have no doubt that Mr Wahlstedt is genuinely ill. The nature and severity of his medical conditions are matters upon which opinions should be sought from his medical practitioner or another physician. It is likely that one or more of Mr Wahlstedt’s medical conditions causes cognitive impairment. However, the severity of his cognitive impairment could not be reliably assessed because, in my opinion, Mr Wahlstedt exaggerated his impairment.
On the same page:-
It is likely that his history of alcoholism, his epilepsy and his diabetes have resulted in some organic impairment of memory function. However, this could not be reliably assessed because in my opinion Mr Wahlstedt was not giving his best efforts to the test tasks.
Because of the complex interactions between Mr Wahlstedt’s diabetes, epilepsy, complex medication regime, possible depression and exaggeration of memory impairment, I am not able to confidently conclude that he has an organic memory impairment.
And later (p 8):-
Mr Wahlstedt failed to answer any of my questions about his understanding of the nature and severity of the charges, the Courtroom processes and procedures, what it means to be guilty or not guilty, what it means to tell a lie in Court and the adversarial nature of the Court Room process. I believe his failure to answer these questions was due to an unwillingness to do so.
And finally (p 8):-
Despite all these difficulties facing the Court if attempting to conduct a trial of Mr Wahlstedt, I am not able to confidently conclude that Mr Wahlstedt has a mental impairment as defined by s.269A because I believe that Mr Wahlstedt has exaggerated his mental impairment.
Dr Said conducted another such assessment in November, 2004. As part of that assessment, Dr Said also interviewed Mr Wahlstedt’s de facto marriage partner, Ms Kilford. Again his conclusions were not encouraging. He said this (pp 5-6):-
In my opinion, it is likely that Mr Wahlstedt has exaggerated any symptoms of cognitive impairment that may be occurring as a result of his medical conditions and medications. I understand that the Judge may decide that a Trial can still proceed under special conditions such as sitting only on the morning of each day with extensive breaks. I believe also that Mr Wahlstedt’s treating physicians may be able to recommend a safe reduction of his medication regime to reduce his sleepiness during the course of the trial.
Nevertheless, I also believe that Mr Wahlstedt is likely to continue to display signs of severe cognitive impairment and it is therefore most unlikely that he will co-operate with any attempts by his counsel to ensure that he understands what it is that he is charged with, the nature of the proceedings, the course of the proceedings in a general sense or the substantial effect of any evidence that may be given against him. He is unlikely to let his counsel know what his version of the facts is and to make his defence and his version of the facts known to the Court.
Therefore, although I cannot confidently conclude that Mr Wahlstedt is mentally unfit to stand trial as defined under section 269, I believe that the behaviours he is likely to display in a trial will make it very unlikely that the trial can successfully proceed.
Dr Said did not undertake a full range of tests because some of those tests were undertaken by another neuropsychologist, Dr Wood.
Dr Wood provided a report dated 21 January, 2005 following attendance by Mr Wahlstedt in November, 2004 and January, 2005. He “....noted that there appears to be some difference of opinion between the neurologists regarding the status of the epileptic seizures.” Part of his summary is as follows (p 7):-
If taken at their face value, the present test results suggest that he is a person of very limited intellectual ability, but there is doubt about this in the light of Mr Balfour’s assessment that was carried out in April 2002. It is of course possible that there has been deterioration in his medical condition. His memory is significantly impaired and the performance on several tests of executive functioning was significantly below average. Because of the performances on the measures of response validity the results on the several psychological measures is cast into doubt. This is a point that has been made by Mr Balfour and also by Mr Said.
And later (pp 7-8):-
Mr Balfour stated that the alleged memory impairment for an event that took place in the 1980’s is not consistent with what is known of a dementing process. This is an opinion with which I agree. Mr Balfour has stated that because of Mr Wahlstedt’s limited physical and psychological stamina he would have difficulty in coping with lengthy court appearances. I also concur with this opinion. My reservation is that he may have difficulty in fully comprehending the issues under consideration in court, given his apparent problem with auditory comprehension. Overall, there are undoubtedly non‑organic factors clouding the symptoms and the measures of cognitive performance, but there is, in my opinion some concern about the contribution of the medication to his level of alertness.
Dr Boundy reviewed Mr Wahlstedt and provided a report dated 9 February, 2005 (see original ruling paras 24-29). Dr Boundy noted that he “....presented in a more animated and communicative manner” than before. Further, “sedation and poor short and long term memory still hampered the interview, as did his other complex medical and neurological problems.” Dr Boundy noted his medications, which included a drug, Anginine, because of a myocardial infarction since she had seen him previously. Dr Boundy summarised her view as follows (p 3):-
Overall a number of his medical conditions do appear to have worsened. He certainly has had at least one significant seizure leading to a hospital admission. His abdominal distension is much more prominent and I believe that it could possibly be partly drug related. He is also suffering from increasing neuropathic pain from his left sciatica, from a scar on the right side of his abdomen and is experiencing tingling in both of his feet. I therefore thought it would be useful to increase his Neurontin to three times a day to help this.
I have serious concerns however, in regards to his memory and ability to both understand the court proceedings and to give a useful testimony due to his significant concentration, short and long term memory deficits at this time. I think he is also significantly depressed.
Dr O’Brien also provided a supplementary psychiatric report dated 2 February, 2005. For reasons expressed in his report, Dr O’Brien concluded that Mr Wahlstedt is unfit to stand trial. He added “....I have no reason to believe that his level of fitness will improve with the passage of time and it may be that it will even disimprove.” His discussion leading to that view is as follows:-
I find myself very much in sympathy with both Mr Balfour’s reasoning and ultimate opinion. I quite agree that there still remains the real issue to what extent Mr Wahlsted’s cognitive impairments are due to organic or functional factors. Furthermore, I note ‘the extreme caution’ Mr Said treats Mr Wahlsted’s ‘displays of severe cognitive impairment’. It would seem to me that Mr Balfour, Mr Said and I are quite ‘uncomfortable’ with the style of some of Mr Wahlsted’s answers and I, for one, am of the view that he may well be capable of giving more prompt and accurate answers if he was better motivated to do so. However, it is impossible to ignore his medical conditions which include epilepsy, angina, diabetes and back, left leg and left foot pain, to name some but not all of his conditions. It is likely that to some extent the many medications he is taking is contributing to his drowsiness and possibly the lack of cognitive ‘agility’. Ultimately, both Mr Balfour and Mr Said have got to consider on, what Mr Balfour terms as, ‘the totality of his mental health problems, regardless of the aetiologies’. This is a sensible and coherent approach to take, given the complexity of the case. In adopting the same approach, inevitably, I have reached the conclusion that following repeated examinations and presentations to me (and others) Mr Wahlsted is unfit to stand trial because of, what appears to be, his inability to actively engage in the court proceedings and to follow them at a level that would be commensurate with an adequate understanding of those ongoing proceedings. Other capacities such as factual knowledge about the court proceedings are more satisfactory or, in my judgement, are at least temporarily remediable.
Dr Kneebone provided an additional report dated 11 January, 2005. Dr Kneebone noted that Mr Wahlstedt is “....physically less well due to his abdominal pain and distention.” He said that the neurological aspects of his presentation were unchanged. Finally, Dr Kneebone said this (pp 4-5):-
The remarks that I have made previously with regard to his capacity to stand trial I believe remain valid. I suspect that it will not be possible despite the detailed nature of his new psychological assessment to be completely sure of his cognitive capacity. The presence of non-organic features indicate that there will be doubt about the nature of any impairment demonstrated.
While Mr Wahlsted is clearly not well it is not my impression that there has been any progressive dementing illness demonstrable over the last two years and nine months from the time of my first consultation with him.
I anticipate that Mr Wahlsted will appear in court to be unable to comprehend proceedings and will appear physically disabled and appear frequently to be asleep. I would assume this will lead to significant logistical problems in managing the trial hearings.
Some of the specialist reports to which I have referred have relied upon the opinions of Mr Balfour. In a very comprehensive and helpful report, Mr Balfour expressed the view that, on the balance of probabilities, Mr Wahlstedt’s mental impairment is now severe enough to make him unfit to stand trial. Mr Balfour also made this observation about the trend of Mr Wahlstedt’s mental and physical health (p 11):-
Mr Wahlstedt has been assessed by a variety of medical and psychological experts over a number of years. There is a clear trend that his mental and physical health has deteriorated. Therefore I believe that it is unlikely he will become fit to stand trial within the next 12 months.
I accept that observation. Based upon the totality of the medical, psychiatric and psychological reports over the past three years, Mr Wahlstedt’s mental and physical health has deteriorated. Whilst at the time of my original ruling I expressed the view that he was at the cusp of unfitness and court sitting arrangements could accommodate his problems, the deterioration referred to is sufficient for me now to be of a different view. In my view, Mr Wahlstedt is now mentally unfit to stand trial. That unfitness has its origins in his physical problems, although there has been a consequential effect upon his cognitive functioning. I note again that the prosecution submission is that Mr Wahlstedt is mentally unfit to stand trial.
Should a finding of mental unfitness be recorded before considering the application for a stay at common law?
As mentioned earlier, Mr Boucaut submitted that I should not record a finding of unfitness to stand trial pursuant to s 269M of Part 8A CLCA but rather proceed to consider the application for a stay applying common law principles. In my view, there are a number of difficulties in adopting such a course.
The first is that my original ruling was based upon an investigation undertaken pursuant to Division 3 of Part 8A of the CLCA. In making the ruling I was applying the provisions under Part 8A and the interpretation given to those provisions.
Secondly, after the original ruling, I undertook a further investigation, of my own initiative, pursuant to s 269J because of ongoing concerns about his mental fitness and a reported deterioration in his physical problems.
Thirdly, although I do not need to decide this point, if the situation of the defendant is such as to come within the purview of Division 3, then those sections are attracted and apply. As is discussed below, that does not preclude the operation of some common law principles, it merely leaves their application until after the legislation has been given effect according to its terms.
Applying the principles referred to in my first ruling, I now record a finding that the defendant is mentally unfit to stand trial.
Application for a stay of proceedings
Reference has previously been made to R v Sexton (2000) 77 SASR 405. In that case the accused was charged with a federal offence. Questions of law arose as to the procedure for determination of unfitness to stand trial, particularly the interaction between Part 8A CLCA and Division 6 of the Crimes Act 1914 (Cth).
Importantly for the purposes of this case, Sexton’s case provides some guidance about the application of the common law principles concerning a stay of proceedings based upon physical ill-health. In an earlier decision concerning Sexton (reported under R v Burns (No 2) (1999) 154 FLR 190), Olsson J decided that the provisions of the Crimes Act (Cth) “....ousts the operation of the common law inherent powers of the court to grant a permanent stay on the ground of existing unfitness to be tried.”
Gray J (with whom the other members of the court agreed) (77 SASR at para 35) disagreed with that proposition. He said (para 35):-
A statute is not to be construed as abrogating fundamental common law principles unless that is manifestly clear from its terms or it is a matter of necessary implication. There is nothing in s 20B to suggest that the inherent jurisdiction of the court to grant a permanent stay has been abrogated. The reasoning in Kesavarajah v The Queen is inconsistent with such a proposition.

As appears later in that judgment, the court considered that the jury’s verdict that Sexton was not unfit to stand trial was correct (para 58). Importantly, the court also decided that there was nothing in that legislation that precluded an application for a stay of proceedings based upon common law principles. In other words, there is nothing in the statutory provisions that shows that they were intended to cover the field. The court said (para 62):-
There remains for consideration, the circumstance where a stay is sought on humanitarian grounds. The ill-health of an accused may, in exceptional circumstances, raise humanitarian considerations, notwithstanding that the accused has a sufficient understanding of the nature of the trial process so as to be able to make a proper defence to the charge. When this occurs, the practice in South Australia is for the matter to be decided by a judge alone. Rules 8 and 9 of the Supreme Court Criminal Rules apply. Dietrich v The Queen (1992) 177 CLR 292; R v Hakim (1989) 41 A Crim R 372.
Such an approach was confirmed by the High Court in Subramaniam v R (2004) 211 ALR 1 referred to in my ruling in Touch (supra) (paras 25-29). There is no need to repeat what I said in examination of that case. However, I again quote from Subramaniam a passage relevant to the present application (para 35):-
35..... This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare [see R v WRC (2003) 59 NSWLR 273]. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave.
(See also R v WRC (supra) at paras 45-50 to the same effect and Hakim (supra) enunciating the “common humanity” test where the accused has a serious medical condition.)
In my view, therefore, the common law principles as to a stay of proceedings have application in the present situation. There is no need to dwell upon those principles at length. Such a power should only be exercised in exceptional circumstances. The onus rests on the party seeking the exercise of the court’s power to stay (here the accused) and it is an heavy onus. Here, it is said that to continue with the proceedings would result in an unfair trial. It is sufficient to quote from two authorities.
In Williams and Others v Spautz (1992) 174 CLR 509, Mason CJ, Dawson, Toohey and McHugh JJ said this (at 520):-
In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour [1980] 1 N.Z.L.R. 464, at p. 481 in a passage which Mason C.J. quoted in Jago (1989) 168 C.L.R., at p. 30. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice.
Secondly, in Walton v Gardiner (1992-1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said this (at 395-6):-
As was pointed out in Jago (see, in particular, (1989) 168 C.L.R., at pp. 30-34, per Mason C.J.; pp. 59-61, per Deane J.; p. 72, per Toohey J.; pp. 76-78, per Gaudron J.), the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.
Discussion
As I considered in the original ruling, there were ways of dealing with any potential unfairness by use of early adjournments and flexible sitting hours. Again, those considerations will go into the weighing process but I note his various conditions have deteriorated in the past twelve months or so.
A separate consideration in the weighing process is the fact that Part 8A of the CLCA is a specific procedure to deal with the consequences of a finding of mental unfitness to stand trial. It would have to be a very unusual case not to apply those provisions. Although Part 8A does apply to mental unfitness brought about by physical infirmities, I think it is fair to observe that its main intended sphere of operation is unfitness brought about by mental illness. Certainly this has been its principal area of operation as a matter of practice. The principles are the same but their application is to a different type of factual scenario.
Further, although I have only touched upon it so far, it should not be overlooked that these charges relate to the early-to-mid 1980’s. The charges are said to be representative of a course of conduct. The complainant made a statement to the police in December, 1999. The accused was spoken to by the police and denied any wrong-doing. His physical health has deteriorated dramatically since that time. If these charges go to trial it would be about twenty years since the events allegedly occurred. This is a substantial delay but is not, per se, sufficient to grant a permanent stay. There are the competing interests referred to in Walton v Gardiner (above). Both the accused and the community have an interest in a fair trial and the community has an interest in the disposition of serious charges and the conviction of those where there is satisfactory proof. All of those matters go to maintaining the public confidence in the administration of justice. Even though there remains a question over the extent of his long-term and short-term memory, I have no doubt his memory is now significantly impaired. He has been significantly prejudiced in an important respect by virtue of the delay in the reporting of this matter.
In my view, this is one of those rare and exceptional cases where the physical infirmities of the accused, in combination with the medication that it is necessary he take, would offend common humanity to proceed with the charges. He cannot even participate in the trial of the objective facts. Those matters are also to be combined with the very long delay since these alleged events. In reaching that view I have not lost sight of the independent discretion available to counsel in this type of situation pursuant to s 269W CLCA. In this regard I rely upon the two affidavits sworn by Mr Kelly dated 28 November, 2003 and 2 March, 2005 respectively.
Mr Wahlstedt has multiple medical conditions. He suffers from complex partial seizures and recently had a prolonged seizure which saw him admitted to the Lyell McEwin Hospital; he has late onset non-insulin dependent diabetes but requires insulin; angina; he has a progressive abdominal distension with pain; he has other pain from his back, left leg and left foot; he is significantly depressed; the host of medications that are necessary for him to take cause sedation and significant concentration problems such that he sleeps for much of the day and his memory is significantly impaired (even though there may be some doubts about the precise extent of it). I have no reason to think it will improve and, if anything, may well deteriorate. The history of his medical problems forms part of my original ruling. Then, as now, I rely upon the report of Dr Boundy, particularly her report of 9 February, 2005 and the quotation above (para 13). His medications are referred to on the first page of that report. I also refer to the passage from Mr Balfour’s report of 31 December, 2004 quoted in para 16 above.
My decision in R v Touch can be distinguished on the facts. The subject matter of the trial was going to cause deterioration in her fragile psychiatric condition. She was not going to be able to contribute to the trial of the objective facts whether she was there or not. This accused is simply too ill to have the matter proceed to trial in any form after such a substantial delay.
I order a permanent stay of these charges.