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…

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.

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Details

Case: [2005] SADC 87
Decision Date: 21 July 2005

CaseChat Overview and Summary

The accused, Wahlstedt, was charged with three counts of indecent assault and five counts of unlawful sexual intercourse, dating back to the mid-to-late 1980s. The application for a permanent stay of proceedings was submitted by Mr Boucaut on behalf of the accused, arguing that the accused was mentally unfit to stand trial due to his deteriorating physical condition. The court had to decide whether the common law principles applied to the accused coming within Part 8A of the Criminal Law Consolidation Act 1935 (CLCA) and whether they could be applied before Part 8A is invoked.

The court considered that there were difficulties in adopting the course suggested by Mr Boucaut, as the court's original ruling was based on an investigation undertaken pursuant to Division 3 of Part 8A of the CLCA. After the original ruling, the court undertook a further investigation of its own initiative, pursuant to s 269J because of ongoing concerns about the accused's mental fitness and a reported deterioration in his physical problems. The court found that the accused was mentally unfit to stand trial due to his physical infirmities and consequent cognitive problems.

The court applied the common law principles concerning a stay of proceedings based on physical ill-health and found that the accused's physical infirmities, in combination with the lengthy delay causing prejudice, made it an exceptional case where the charges should not proceed. The court considered factors such as fairness to the accused, the legitimate public interest in the disposition of serious offences, and the need to maintain public confidence in the administration of justice.

The court ordered a permanent stay of the charges against the accused, taking into account the accused's multiple medical conditions, significantly impaired memory, and the substantial delay since the alleged events occurred. The court distinguished the decision in R v Touch, as the accused in that case was not able to contribute to the trial of the objective facts regardless of their presence, whereas the accused in this case was simply too ill to have the matter proceed to trial after such a substantial delay.

Orders