R v WRC

[2003] NSWCCA 394

Reported Decision: 59 NSWLR 273
143 A Crim R 503

New South Wales

Court of Criminal Appeal

CITATION:	REGINA v WRC [2003] NSWCCA 394
HEARING DATE(S):	3 December 2003
JUDGMENT DATE:	19 December 2003
JUDGMENT OF:	Spigelman CJ at 1; Dunford J at 65; Hidden J at 66
DECISION:	Appeal allowed.
CATCHWORDS:	CRIMINAL PROCEDURE - fitness to plead - where trial judge ordered permanent stay of proceedings as abuse of process - test for ordering permanent stay - whether procedure for determining fitness to plead in Mental Health (Criminal Procedure) Act 1990 should have been allowed to operate - relationship between Mental Health (Criminal Procedure) Act and inherent jurisdiction of superior courts.
LEGISLATION CITED:	Crimes Act 1900 s81 Crimes Act 1914 (Cth) s20B Crimes (Mental Disorder) Amendment Act 1983 Criminal Appeal Act 1912 s5F Mental Health (Criminal Procedure) Act 1990 ss 4, 5, 7, 8, 9, 10, 11, 11A, 13, 14, 15, 18-28
CASES CITED:	Bropho v Western Australia (1991) 171 CLR 1 Eastman v The Queen (2000) 203 CLR 1 Jago v District Court (NSW) (1989) 168 CLR 23 Kesavarajah v The Queen (1994) 181 CLR 230 Potter v Minahan (1908) 7 CLR 277 R v Burns (No 2) (1999) 169 ALR 149 R v Hakim (1989) 41 A Crim R 372 R v Mailes (2001) 53 NSWLR 251 R v Presser [1958] VR 45 R v Sexton (2000) 76 SASR 534 R v Sexton (2000) 77 SASR 405 R v WRC [2002] NSWCCA 210 Walton v Gardiner (1993) 177 CLR 378
PARTIES :	Regina (Appellant Crown) WRC (Respondent)
FILE NUMBER(S):	CCA 60280/03
COUNSEL:	G I O Rowling (Appellant Crown) R A Hulme SC (Respondent)
SOLICITORS:	C K Smith (Appellant Crown) Baker Deane & Nutt (Respondent)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	97/11/0850
LOWER COURT JUDICIAL OFFICER :	Woods DCJ

- 2 -

60280/03

SPIGELMAN CJ
DUNFORD J
HIDDEN J

Friday 19 December 2003

REGINA v WRC

FACTS

The Respondent was charged with a number of counts of indecent assault upon a specified male person in contravention of s81 of the Crimes Act 1900. At a trial on substantially the same indictment held in November 2000, the jury was unable to reach a verdict and was discharged. The Respondent had also been convicted of similar acts in relation to two other complainants and served some twenty months imprisonment, however in 2002 the Court of Criminal Appeal quashed those convictions and ordered re-trials. The Director of Public Prosecutions has decided that there will be no further proceedings in those matters. On 27 June 2003, Woods DCJ ordered a permanent stay of proceedings on the indictment as an abuse of process, on the ground that the Respondent was unfit to be tried. His Honour concluded that it was neither necessary nor appropriate to invoke the procedure to determine fitness to be tried under the Mental Health (Criminal Procedure) Act 1990 given the circumstances of the Respondent’s condition. The Crown appeals from that decision.

HELD (per Spigelman CJ, Dunford and Hidden JJ agreeing)

A.
The legislature, in enacting the Mental Health (Criminal Procedure) Act , intended that the issue of fitness to be tried should be determined by jury. [37]

B.
That Act does not abrogate the inherent power of a superior court to control abuse of its own processes. [47], [49], [50]

R v Burns (No 2) (1999) 169 ALR 149, R v Sexton (2000) 77 SASR 405 considered; Walton v Gardiner (1993) 177 CLR 378 referred to; Potter v Minahan (1908) 7 CLR 277, Bropho v Western Australia (1991) 171 CLR 1 cited.

C.
A permanent stay of criminal proceedings is an exceptional intervention into the processes of the criminal law. Where a specific statutory procedure with a different decision-maker is laid down to determine matters primarily relied upon for the grant of a permanent stay, there will be few circumstances where the operation of that procedure would constitute an abuse of process. Although his Honour purported to apply a test recognising the exceptional character of a stay, he did not give proper consideration to the existence of a system to determine, by jury, the matters upon which he relied to reach his conclusion. His Honour’s exercise of the discretion to order a permanent stay miscarried and should be re-exercised. [55], [56], [59], [60]

R v Hakim (1989) 41 A Crim R 372 distinguished.

D.
A permanent stay should not be ordered and the operation of Pt 2 of the Act should be allowed to proceed so that the issue of the Respondent’s fitness to be tried may be determined by a jury. [60], [61], [63]

ORDERS
Appeal allowed, order made by Woods DCJ set aside.

60280/03

SPIGELMAN CJ
DUNFORD J
HIDDEN J

Friday 19 December 2003

REGINA v WRC

Judgment

1 SPIGELMAN CJ: This is a Crown appeal pursuant to s5F of the Criminal Appeal Act 1912. On 27 June 2003, Judge GD Woods QC ordered that an indictment presented against the Respondent be permanently stayed. The Crown appeals from that decision.

Decision of Woods DCJ

2 His Honour had before him an indictment containing a number of charges of indecent assault upon a specified male person which constituted offences under s81 of the Crimes Act 1900. Substantially the same indictment had been tried in November 2000, but the jury had been unable to reach a verdict and was discharged.

3 With respect to two other Complainants, alleging similar acts on the part of the Respondent, he had been convicted but, on 7 June 2002, the Court of Criminal Appeal quashed those convictions and ordered re-trials (R v WRC [2002] NSWCCA 210). On 31 January 2003, the Director of Public Prosecutions directed that there be no further proceedings in those matters. Prior to the order of the Court of Criminal Appeal, the Respondent had served some twenty months imprisonment towards the sentences imposed on him with respect to those matters.

4 Near the commencement of his judgment and before setting out the evidence, Woods DCJ referred to the psychiatric evidence before him in the following terms:

“The general thrust of the conclusions reached by the psychiatrists, Dr Westmore and Dr Lucire, is that the accused is unfit to be tried at the present time. According to the opinion of Dr Westmore unlikely to be fit to be tried within twelve months.”

5 His Honour identified the issues before him as a contention on the part of the accused that the indictment should be permanently stayed as an abuse of process, with the Crown taking the position that the steps required to be taken to determine fitness to be tried under the Mental Health (Criminal Procedure) Act 1990 (“the Act”) should be allowed to take effect.

6 His Honour noted that he had a number of medical reports before him. This included the reports of a Dr Goddard and a Dr Barraclough, as well as Dr Goldberg, a clinical psychologist.

7 His Honour noted the report of Dr Goddard:

“Dr Goddard refers to the accused as suffering from cancer in the form of non-Hodgkins lymphoma which that doctor, (an oncology registrar for Dr Paul Kraft, a medical oncologist) describes as an indolent disease: that, of course, means that it is not painful, which is not to say that it is not fatal. According to that oncological report, the disease carries a median survival of about ten years following diagnosis. It is now, according to the report, about six years following diagnosis. The question of life expectancy must be assessed in terms of that material.”

8 His Honour noted that Dr Goddard indicated that the short-term prognosis for the Respondent was “quite good”, but as such a tumour tends to become more resistant to treatment over time, his “prognosis over the next few years is more guarded”. Woods DCJ noted that the active condition of lymphoma did affect the Respondent, specifically, his life expectancy.

9 His Honour referred to the report of Dr Barraclough, concerning the Respondent’s ischaemic heart disease. The report noted:

“Has ongoing chest pain which could be angina, occurs with minimal exertion and especially when stressed. He is known to have minor coronary artery disease, ie 30 percent stenosis left anterior descending. This needs further assessment with a cardiologist.”

10 Dr Barraclough referred to a recent cerebellar infarction and his Honour described the remarks in this regard as “significant”. They were:

“Affects balance and cognitive function, has very poor attention span and poor comprehension. He is waiting on a MRI scan for further evaluation and then referral to a neurologist.”

11 His Honour referred to the report of Dr Goldberg which concluded that:

“The cumulative stress of the criminal charges and convictions, and particularly the prison sentence, has exacerbated his stress levels culminating in the most recent stroke of January 2003.”

12 The report also said:

“Slow response speed and impaired concentration and attention would make it difficult for him to follow the course of proceedings. Long term memory retrieval is also inefficient and likely to interfere with his ability to be accurate in giving evidence to do with time orientation and sequence of events. Although there would be no difficulty in understanding the charges conceptually he would have difficulty in maintaining concentration, organising his thoughts and planning responses when answering charges or instructing his legal representatives.”

13 The report went on to discuss other aspects of the Respondent’s medical condition, including slurred speech, memory problems, blurred vision, disorientation and difficulty in remembering sequences. His Honour noted:

“The report of the tests she undertook with him indicates extreme impairment in the category of audio-verbal retention, marked impairment in concentration and retrieval in the area of memory. There are other mild and moderate and marked impairments indicated in various other tests, particularly marked impairment in relation to concentration in terms of higher order functions. However, it seems to me that the most significant problem is the difficulties with memory.”

14 His Honour quoted the clinical psychologist’s conclusion:

“His general problems with time orientation and poor complex memory could impede his ability to understand the substantial effect of evidence or to answer the charges.”

15 Dr Lucire, a psychiatrist instructed on behalf of the Respondent, concluded that the Respondent was not fit to stand trial.

16 Woods DCJ referred to the psychiatric report of Dr Westmore in the following terms:

“Dr Westmore, the psychiatrist commissioned by the Crown to undertake the counterpart investigation, also extensively spoke with the accused. There was no suggestion that Dr Westmore is likely to have been fooled by some impersonation of symptoms and he adduced from the accused several responses which, as explained in the report, indicated that he had been affected by the strokes to a significant degree.”

17 His Honour quoted Dr Westmore’s conclusion as follows:

“Overall Mr C is in my opinion unfit to be tried. I do not believe that situation is likely to change within the next twelve months. In view of his history, inattention and impaired concentration I think it would be wise to have his driving capacities reassessed to determine whether he remains a safe driver because of the identified difficulties he experiences.”

18 His Honour noted the nature of the trial, being allegations of sexual assault. He referred to the fact that there had been a hung jury at the previous trial, but said that that factor was not determinative. However, his Honour said, it did serve as a reminder that it was forensically necessary, in a case of this character, for the accused to give evidence explaining his position. His Honour postulated as a “critical question” whether there could be a fair trial in the circumstances.

19 His Honour said:

“This man suffers from a painless but no doubt fatal form of cancer. The evidence about life expectancy is that the median point of life expectancy relative to his condition after diagnosis will be reached in about four years from now … Of course it is theoretically possible that, like Mr Hakim, he may linger for decades and still be around in 2030. But decisions by courts can only be taken on the basis of the evidence before them. Regrettably for Mr C it seems wholly unlikely that an extensive life expectancy will be available to him. There has been evidence of angina and there is evidence of the strokes he suffered, one of them being since the first trial.
My deduction from all of the evidence which I have referred to (and it appears to be the conclusion drawn by both of the psychiatrists) is that the combined effect of his various illnesses impacts severely on his capacity to defend himself in a trial. Both experienced psychiatrists accept that the accused is not presently fit to be tried.”

20 This expression of his Honour’s findings of a factual character is of considerable significance. His Honour had referred to other considerations which may be of significance for determining the application for a stay, particularly the heart disease and lymphoma. In his conclusion, however, his Honour focuses on the effect of the illnesses upon the Appellant’s “capacity to defend himself in a trial”. In this passage, which is the culmination of his Honour’s analysis of the facts, he gives primary, indeed determinative, weight to the issue of fitness to be tried.

21 Before Woods DCJ, the Crown submitted that no permanent stay should be granted, but that the Court should make orders to have the matter of fitness determined under the provisions of the Act. The Crown submitted that the issue should properly be dealt with under the Act. The Crown also asserted that it was the intention of Parliament that the Act “cover the field” so that it was not open to the Court to order a stay on those grounds.

22 His Honour referred to R v Hakim (1989) 41 A Crim R 372, a case in which the Court exercised the jurisdiction to stay an indictment at a time when the relevant statutory provision was Pt 11A of the Crimes Act 1900 as inserted by the Crimes (Mental Disorder) Amendment Act 1983. His Honour noted there was no suggestion in Hakim that that statutory provision was intended to cover the field. His Honour concluded:

“The law of unfitness and stay on the ground of abuse of process overlap to a significant extent, but they are not co-extensive and they are certainly not mutually exclusive.”

23 The Crown also drew the attention of Woods DCJ to the decision of Mr Justice Olsson in R v Burns (No 2) (1999) 169 ALR 149. His Honour concluded that the reasoning of Olsson J, in the context of s20B of the Crimes Act 1914 (Cth) was not applicable to the New South Wales legislative regime.

24 His Honour traced the history of the New South Wales legislation. That history is considered more comprehensively by Wood CJ at CL in R v Mailes (2001) 53 NSWLR 251 at [183]-[203].

25 His Honour concluded that this was not a case where it was either “necessary or appropriate” to invoke the special trial procedures under the legislation and said this was a case very similar to Hakim’s case. He concluded:

“It seems to me that the man who has made the complaint in this case (and who obviously gave evidence in the first trial where there was a hung jury) is prima facie entitled to have his complaints brought before the courts, and prima facie is entitled to have them litigated. The remedy of an order staying prosecution on the ground of abuse of process is a remedy which the courts have repeatedly said is only available in exceptional circumstances and is not to be granted lightly. Before such a remedy is granted, powerful regard has to be had to the normal right of a citizen, and the Crown acting on his behalf, to prosecute for perceived criminal misconduct. That due process of law is not to be stopped lightly and otherwise than in an exceptional case.
In my view, this is such an exceptional case. It seems to me that this case calls for the making of the same order that was made in Hakim , for similar reasons.
I order that the indictment be permanently stayed. In those circumstances it is unnecessary for me to deal with the question of fitness.”

26 This last comment is a reference to the Crown submission that his Honour should make orders to have the issue of fitness determined under the Act.

Submissions on the Appeal

27 Mr G Rowling, who appeared for the Appellant, submitted that by relying on the evidence before his Honour, the Respondent raised the question of unfitness to be tried within the meaning of s8(1) of the Act, which relevantly provides:

“8(1) If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.”

28 Mr Rowling submitted that the effect of s8(1) was that it was not open to a judge to proceed with the charges. Whether or not the issue had been “raised”, so that s8(1) was triggered, is a statutory construction issue. Whether the Attorney-General was obliged to make a determination need not be considered. Any such obligation became moot upon his Honour’s order.

29 The Appellant submitted to this Court, as it had before Woods DCJ, that the provisions of the Act “cover the field” of circumstances in which the question of an accused’s fitness to be tried can arise. They provide a statutory remedy for deciding whether an accused is unfit to be tried and apply to the exclusion of other procedures.

30 In the alternative, the Appellant submitted that the remedy of a permanent stay of criminal proceedings was an exceptional one, and by reason of the fact that there were appropriate statutory procedures, there was no occasion for his Honour to order that the proceedings be stayed.

31 Mr R Hulme SC, who appeared for the Respondent, submitted that the Appellant’s contentions, if correct, would mean that the remedy of a permanent stay would be unavailable even in cases of extreme unfairness or oppression, if there was any unresolved question as to the accused’s fitness to be tried. He submitted that in the case of an abuse of process by reason of a prosecution having been brought for an improper purpose or because proceedings were doomed to fail, no stay would be available unless and until any unresolved issues of fitness for trial were determined by the procedures under the Act.

32 Mr Hulme submitted that Pt 2 of the Act is not a statutory scheme which supplants the common law. It was intended, he submitted, to operate alongside the common law. He relied on the principle that a statute is not to be construed as abrogating fundamental common law principles unless the intention to do so is manifest. He submitted that nothing in the terms of Pt 2 of the Act contain any such manifest intention.

33 He submitted that it was open to his Honour to conclude that the combination of the matters to which his Honour referred were such that a permanent stay was appropriate in the exercise of a broad discretion. He submitted that his Honour’s references to issues which overlap with a fitness inquiry may have indicated that these were the primary considerations, but they were not the only considerations to which he had regard. Mr Hulme also invoked the well known restrictions on an appellate court interfering with a discretionary decision.

The Legislative Scheme

34 Part 2 of the Act, by its title, is concerned with criminal proceedings “relating to persons affected by mental disorders”. The opening section of the part identifies its application to the Supreme Court and the District Court (s4). The next section indicates the trigger for the operation of the scheme.

“5. The question of a person’s unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the court.”

35 The terminology of matters of fitness being “raised” continues in subsequent sections:

· The question of fitness is to be raised “so far as practicable” before arraignment, but it may be raised at any time (s7).

· Where the question is raised before arraignment, the Attorney is to determine whether an inquiry should be conducted (s8).

· If the issue of fitness is raised after arraignment, the court must hear submissions on the conduct of an inquiry in the absence of the jury (s9).

· Where the Attorney determines an inquiry should be conducted, or the question of the person’s fitness is raised after arraignment, the court must save in specific situations, conduct an inquiry into fitness (s10).

36 Sections 11 and 11A are of significance. By s11 a jury, constituted for the specific purpose, is to determine the issue of unfitness to be tried. By s11A(1):

“11A(1)The question of a person’s unfitness to be tried for an offence is to be determined by the Judge alone if the person so elects in accordance with this section and the Judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor.
(2) An election may be made only with the consent of the prosecutor.
(3) A person who elects to have the question determined by the Judge alone may, at any time before the date fixed for the determination of the person’s unfitness to be tried, subsequently elect to have the question determined by a jury.
(4) The Judge may make any finding that could have been made by a jury on the question of the person’s unfitness to be tried. Any such finding has, for all purposes, the same effect as a finding of a jury.
(5) Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(6) Rules of court may be made with respect to elections under this section.”

37 These sections indicate a legislative intention that the issue of fitness should be determined by the usual method of trial on indictment in the superior courts, i.e. trial by jury.

38 Where, following an inquiry, a person is found fit to be tried, the proceedings are to recommence (s13). However, where a person is found to be unfit, certain consequences ensue, including a reference to the Mental Health Review Tribunal (ss14 and 15).

39 Where the Mental Health Review Tribunal determines that a person will not, on the balance of probability, become fit to be tried during the period of twelve months after the finding of unfitness, the Attorney General may direct a special hearing be conducted. The purpose of the special hearing is to determine whether it can be proved, on the limited evidence available and to the requisite criminal standard, that the person committed the offence. Thereafter the judge may indicate the sentence which the court would have considered appropriate if there had been a normal trial. Other provision is also made for the consequences of the finding of unfitness. (See generally ss18-28)

The Jurisdiction Issue

40 The Appellant relied on observations of Mr Justice Olsson in R v Burns (No 2). In that case an issue considered was whether or not there remained scope for the operation of common law principles or did the matters of fitness that arose in that case fall to be considered “solely within the purview of s20B of the Crimes Act 1914, Commonwealth”.

41 The issue was whether or not Division 6, in which s20B appeared, operated to the exclusion of the inherent power of the court at common law to stay proceedings where those proceedings “would be unacceptably oppressive and unfair to an accused”. (See [19]-[20]).

42 Olsson J concluded:

“[36] … It seems to me that, in relation to the types of federal offence to which it applies, it [Division 6 of the Crimes Act 1914 (Cth)] effectively 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.
[37] In so saying I do not intend to imply that Div 6 also operates so as to cover situations in which a trial judge may need to consider relatively short term adjournment or other measures to meet transient conditions of an accused’s incapacity arising during the course of a trial, including the power to sever or to continue the trial in the absence of an accused in proper cases. It seems to me that Div 6 is essentially pre-occupied with potential long term scenarios which can truly fall within the rubric of unfitness to be tried in the absolute sense.”

43 This conclusion was based on a consideration of a statutory scheme of Div 6 of the Commonwealth Crimes Act, which is not the same as Pt 2 of the Act. It is not, however, necessary to consider whether the differences are relevant.

44 Mr Hulme SC drew the Court’s attention to the subsequent history of the matter considered R v Burns (No 2). The person who failed in the application for permanent stay subsequently made another application. The application was refused, but a jury was empanelled to determine the question of fitness and returned a verdict that the accused was fit to be tried. An appeal from the refusal to order a stay, as well as an appeal against the jury verdict that he was not unfit, came before the Full Court of the South Australian Supreme Court in R v Sexton (2000) 76 SASR 534. The matter was not resolved then, as it was regarded as appropriate to require the trial judge to state a case.

45 The matter returned to the Full Court in R v Sexton (2000) 77 SASR 405. Gray J, with whom Prior and Williams JJ agreed, referred to the observation quoted above by Olsson J in para [36] of his reasoning, to the effect that the scheme ousts the operation of the common law inherent power to grant permanent stay. His Honour said:

“[35] In my view this proposition is not correct. 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.”

46 There is, accordingly, no authority in favour of the Appellant’s contention under the analogous Commonwealth legislation. In any event, the State scheme must be considered on its own terms.

47 Part 2 contains a carefully constructed scheme for determining issues of fitness to be tried, which is comprehensive in its scope. That does not, however, mean that it is intended to be exclusive, in the sense of a mini-code, which operates to the exclusion of any other circumstance in which an issue capable of being characterised as raising a question of fitness to be tried may be determined in the course of criminal proceedings. Specifically, I see nothing in the statutory scheme that suggests that it should be understood to exclude the inherent power of a superior court to control its own processes and, particularly, its power to control abuse of its processes. As the majority joint judgment said in Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ:

“The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.”

48 Whether the Parliament of New South Wales has the ability to pass laws to prevent a superior court exercising criminal jurisdiction from exercising its inherent jurisdiction to stay its proceedings on grounds of abuse of process, is a matter that could raise issues under the Commonwealth Constitution. No such issue has arisen during the course of argument in this case.

49 For present purposes, it is sufficient to rely on the principle of the law of statutory interpretation that a legislature will not be taken to overturn a fundamental principle of the administration of justice without expressing itself with pellucid clarity. (See e.g. Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1991) 171 CLR 1 at 17-18). There is a strong presumption that the legislature does not intend to abrogate the inherent jurisdiction of a superior court to control abuse of its processes.

50 Part 2 is concerned with a particular range of matters. Such matters may arise in combination with matters not within its scope, in the context of alleged abuse of the processes of a court. Nothing in Pt 2 of the Act suggests, let alone states with sufficient clarity, that the Parliament intended to impinge on the implied jurisdiction of the District Court or the inherent jurisdiction of this Court, in this regard. The presumption to which I have referred is not overcome. The Appellant’s contention that his Honour had no jurisdiction to make the order that he did make, on the basis that Pt 2 of the Act covered the relevant field, should be rejected.

Did His Honour Commit a Legal Error?

51 Woods DCJ relied on the decision of this Court in R v Hakim (1989) 41 A Crim R 372. In that case, Lee J ordered a stay on medical grounds based on the accused’s long history of ischaemic heart disease. No issue arose as to the application of the predecessor provisions of Pt 2 of the Act. It does not appear that the decision of Lee J was based on fitness considerations of the character with which Pt 2 of the Act is concerned. There was reference in the reasoning in that case to the effect that illness had had on the memory of the accused (at 376.6). However, the thrust of the judgment was directed to what Lee J described as the “deplorable medical condition” of the accused. (See at 376.9)

52 The test which Lee J applied, affirmed on appeal, was that in the light of the deterioration of the accused’s medical condition it “would be out of accord with common humanity” to allow the charges to proceed. In this respect, Kirby P noted that “he has already to some extent suffered prejudice in regard to his memory from the passage of time between the commission of the alleged offence and now”. (At 377.3) However, that did not appear to be the decisive consideration.

53 His Honour’s conclusion, that to allow the charges to proceed would constitute an abuse of the process of the Court, was not disturbed by the Court of Appeal. Kirby P, with whom Gleeson CJ and Clark JA relevantly agreed, concluded:

“If, as Lee J found, it would offend common humanity to now require Mr Hakim to stand trial on the further charge of conspiracy, it was open to Lee J to stay the proceedings upon that charge. It will be a rare case that intervening illness or the physical or mental condition of the accused will bring the court to that conclusion. But Lee J was brought to it. And I would not disturb that conclusion on the facts of this case.”

54 Since the judgment of this Court in Hakim, the High Court has explained the jurisdiction in terms consistent with that judgment, but elaborating upon it in certain respects. (Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner.) No narrow view of an abuse of process is appropriate.

55 A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law. The public interest in ensuring that persons charged with crimes are tried is entitled to significant weight in the necessary balancing process. (See e.g. Jago at 30 and 49-50.) Because of this, as Mason CJ said in Jago at 34:

“a permanent stay should be ordered only in an extreme case.”

56 Woods DCJ purported to apply a test of “exceptional circumstances”. However, his Honour did not in my opinion, give proper consideration and weight to the existence of a system for determining the matters upon which he primarily relied to reach his conclusion. In Pt 2 of the Act, the Parliament has indicated that, in accordance with the normal procedures for trial of serious offences, issues of this character should usually be determined by a jury. His Honour arrogated to a judge the very function which the Parliament has indicated should be performed by a jury, as representative of the community.

57 It is not entirely clear what weight his Honour gave to the kinds of medical considerations that determined the outcome in Hakim. His Honour did say that the case before him was similar to Hakim’s case, however, at the time that he expressed his relevant finding, he did so in the terms quoted above, i.e. “the combined effect of his various illnesses impact severely on his capacity to defend himself in a trial.” This conclusion, in large measure, if not exclusively, is concerned with matters that would arise in a fitness hearing in accordance with the well established approach to deciding that issue in Australia. (See R v Presser [1958] VR 45 esp at 48; Kesavarajah v The Queen (1994) 181 CLR 230 esp at 244; Eastman v The Queen (2000) 203 CLR 1 esp at [59]-[64]; [294], [332]; Mailes at [112]-[181]. Indeed the psychiatric reports of Dr Lucire and Dr Westmore, upon which his Honour relied, applied what the authors described as “the Presser criteria”.

58 His Honour’s approach to the alternative under Pt 2 was to assert, without elaboration of reasons:

“this is not a case where it is necessary or appropriate to have reference to the special trial procedure to the exclusion of the remedy [of a permanent stay].”

59 In this reasoning, his Honour failed to give weight to the existence of an alternative mechanism, to be determined by a jury, for deciding the very matters upon which his Honour primarily relied to reach his conclusion that this was one of those exceptional cases in which a permanent stay was appropriate. Where, as here, a specific statutory procedure with a different decision-maker, is laid down for the determination of the matter primarily relied upon for purposes of a permanent stay, it is difficult to conceive of circumstances in which it would be appropriate to find that the continuation of proceedings, which will involve the determination of that question by that procedure, should at that point be stayed, on the basis that any further proceedings would constitute an abuse of process. The Court should permit the special procedure to operate in accordance with its terms, unless there is some overwhelming reason for not allowing that to happen. There was no evidence of that character before his Honour. The medical evidence was not of that character.

60 His Honour purported to exercise a general unfettered discretion to decide whether a stay should be granted. However, with respect to the matters on which his Honour primarily relied, the discretion was not entirely unfettered because significant weight had to be given to the fact that a mechanism to resolve that issue was available. His Honour did not give that consideration appropriate weight and the discretion miscarried. This Court should re-exercise the discretion.

Conclusion

61 In my opinion, on the facts found by his Honour, a permanent stay should not be ordered. The continuation of proceedings, which would necessarily, as a next step, involve the application of Pt 2 of the Act, is not an abuse of the processes of the court.

62 The other considerations, on the evidence before the Court do not, in my opinion, indicate that it would be an affront to “common humanity” to require Mr C to face a trial. The “median” life expectancy of ten years from diagnosis is a median, i.e. half of all persons have a longer life expectancy. The evidence of heart disease indicates a degree of risk of a character which is not particularly significant or unusual.

63 There is evidence that his ability to mount a defence is affected. This case proceeded on the basis that Pt 2 of the Act would be available to determine that issue. It should be allowed to operate so that the issue is determined by a jury, unless s11A of the Act is invoked.

64 In my opinion, the appeal should be allowed and the order made by Woods DCJ should be set aside.

65 DUNFORD J: I agree with Spigelman CJ.

66 HIDDEN J: I agree with Spigelman CJ.

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Last Modified: 12/23/2003