Regina v Harold Arthur Burke - [2006] NSWDC 151

CITATION: Regina v Harold Arthur Burke [2006] NSWDC 151

HEARING DATE(S): 11 December 2006

JUDGMENT DATE:
12 December 2006

EX TEMPORE JUDGMENT DATE: 05/12/2007

JUDGMENT OF: Nicholson SC DCJ

DECISION: Application for permanent stay refused. para 75.

CATCHWORDS: Criminal law - Application - permanent stay of proceedings - sexual assault charges - child complainant - 83 year old grandfather - war vetran - age related health and dementia problems - trial offends common humanity claim - purpose criminal law trial serves in community - significance of permenant stay measured against that purpose - remedy of last resort - quality of fair trial according to law.

LEGISLATION CITED: Mental Health (Criminal Procedure) Act 1990

CASES CITED: Jago v The District Court of New South Wales (1989) 168 CLR 23
WRC (2003) 59 NSWLR 273
Littler (2001)120 ACrimR 512

PARTIES: Regina
Harold Athur Burke

FILE NUMBER(S): 06/21/0110

COUNSEL: Applicant: M.J Crawford-Fish
Crown: Ms I Curry

JUDGMENT
On application for stay of proceedings

1 HIS HONOUR: Harold Arthur Burke was born in July 1923. He is now 83 years old. He no longer enjoys good physical health. He has been diagnosed with three significant mental health issues. He takes something like ten tablets and two injections daily to maintain such health as he has.

2 On 4 January 2005 a young female relative complained of being sexually assaulted by him.

3 On 28 January 2005 she made a number of allegations to police. Harold Burke was charged with three counts of sexual assault on 13 May 2005.

4 More than six months later, the young female relative made further allegations. On 27 February 2006, Harold Burke was charged with further counts of sexual offending.

5 On 22 March 2006, the Local Court committed him for trial. This 83 year old man now stands charged with nine counts of sexual assault of one kind or another. The maximum penalty for the various offences with which he has been charged ranges from seven years to twenty years imprisonment.

6 By notice of motion he seeks a permanent stay on the grounds that his state of physical and mental health is such that it would offend common humanity to require him to stand trial.

7 The Court’s task is to determine whether the evidence before it supports the defence contention that Mr Burke’s age, ill health, both mental and physical, are such that any trial of the issues between the Prosecution and the defence would lose the required essential quality of being a fair trial according to law.

8 The defence case is that, given his age and frail health, it would offend common humanity to involve him in a trial.

A Question of Purpose and Process.

9 When a permanent stay is sought, it is important to bear in mind the purpose the criminal law serves in our community and the essential qualities required of the criminal law process. It is only against a proper understanding of both, that a proper appreciation can be made…

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: [2006] NSWDC 151
Decision Date: 12 December 2006

CaseChat Overview and Summary

The case before the court was an application by Harold Arthur Burke to permanently stay criminal proceedings against him for sexual assault charges. The complainant in this case was a child, and Burke, aged 83, is the complainant's grandfather. Burke is a war veteran with significant age-related health and dementia problems. The application for a permanent stay argued that the trial would offend common humanity and that the purpose of the criminal law trial in the community would be compromised. The significance of a permanent stay needed to be measured against the purpose the criminal law trial serves in the community.

The court was required to consider the quality of a fair trial according to law and whether a permanent stay was the appropriate remedy. The court had to weigh the interests of the community in having the accused face trial against the potential prejudice to the applicant caused by the delay. The court noted that a permanent stay is a remedy of last resort and that the applicant bears the onus of establishing that the trial offends common humanity and is not in the interests of the community. The court also had to consider the potential prejudice to the complainant and the witnesses, including the delay and the impact on their memories.

The court found that Burke's age and health issues did not, of themselves, warrant a permanent stay of proceedings. The court held that the quality of a fair trial according to law was not compromised, and the community interest in having the accused face trial outweighed the potential prejudice to Burke. The court also found that the application for a permanent stay was not in the interests of the community, and the remedy of a permanent stay was not appropriate. The court refused the application for a permanent stay of proceedings.

Orders

Orders of the court

Application for permanent stay refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Regina v Harold Arthur Burke [2006] NSWDC 151
HEARING DATE(S):	11 December 2006
JUDGMENT DATE:	12 December 2006
EX TEMPORE JUDGMENT DATE:	05/12/2007
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Application for permanent stay refused. para 75.
CATCHWORDS:	Criminal law - Application - permanent stay of proceedings - sexual assault charges - child complainant - 83 year old grandfather - war vetran - age related health and dementia problems - trial offends common humanity claim - purpose criminal law trial serves in community - significance of permenant stay measured against that purpose - remedy of last resort - quality of fair trial according to law.
LEGISLATION CITED:	Mental Health (Criminal Procedure) Act 1990
CASES CITED:	Jago v The District Court of New South Wales (1989) 168 CLR 23 WRC (2003) 59 NSWLR 273 Littler (2001)120 ACrimR 512
PARTIES:	Regina Harold Athur Burke
FILE NUMBER(S):	06/21/0110
COUNSEL:	Applicant: M.J Crawford-Fish Crown: Ms I Curry