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 of the significance of a permanent stay and the limited circumstances in which one can be given.

10 The protection of individuals from harm by others has long been recognised as the responsibility of lawful government. The criminal law, in particular, is harnessed so that all may well know the law will do all it can to protect the safety of each individual within the jurisdiction of that government.

11 Where a person makes a complaint that the provisions of the criminal statutes have been breached by way of an offence committed against her/him, that complaint is investigated by police. Where, in the opinion of experienced police, there is sufficient evidence in support of the complaint made, police are duty bound to charge the alleged perpetrator with charges. Those charges are the initiating process whereby the Prosecution, on behalf of the community, may advance evidence in support of the allegations and the defence may have an opportunity to answer the allegations if an adequate answer is available.

12 In the case of serious charges, there is a filter system so that charges that are flawed, or have inadequate evidence in support of the allegations made, are filtered out.

13 In this case a judicial officer, acting administratively, has determined in respect of each charge before the Court that the evidence is of such a quality that it is capable of satisfying a jury beyond reasonable doubt of the allegations made. That is to say that in respect of each of the charges upon which the applicant has been committed for trial, in the event those allegations remain unanswered, the evidence of the Prosecution is capable of satisfying a jury of his guilt.

14 Assuming he does not enter pleas of guilty, Harold Burke is to be presumed innocent even though he has been committed for trial.

15 The law has no interest in punishing those who are not guilty of crime, but its underlying purpose in protecting the community is to ensure that those who are guilty of offences must be held accountable for them.

16 To sift out those who are guilty from those who are not guilty, there is, subject to appeal, a final filter system, namely the criminal trial. A person cannot be found guilty unless he admits his guilt in Court, or a properly constituted tribunal of the Court, at trial of the issues between the parties, determines on admissible evidence that his guilt has been established beyond a reasonable doubt.

17 In this case Harold Burke seeks, on account of his health, that the purposes of the criminal law be abandoned and its processes stayed. It is only in a rare case the purpose of the criminal law will be abandoned and the process stayed in the face of a judicial officer determining that the evidence is capable of satisfying a jury beyond reasonable doubt of guilt.

Remedy of Last Resort.

18 The remedy sought by Harold Burke is a remedy of last resort, used only in exceptional circumstances, where any trial of the issues would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process (Littler (2001)120 ACrimR 512 at 513 per Hodgson JA). That is because the central prescript of the criminal law processes is that no person shall be convicted of a crime otherwise than after a fair trial according to law. A conviction cannot stand if irregular or prejudicial occurrence has permeated or affected proceedings to such an extent that the overall trial has lost its character according to law (Jago v The District Court of New South Wales 168 CLR 23 at 57 per Dean J). It is only when a trial loses that essential quality that it can be asserted the process no longer serves the established purpose of the criminal law.

19 The onus, which is said to be a heavy onus, is placed upon an applicant, to satisfy the Court, any trial of him would lose its required essential quality of being a fair trial according to law.

20 In circumstances where an applicant’s health disabilities include substantial questions of whether he is affected by any mental disorder, before a stay can be given a further inquiry needs to be made.

21 The Court must give weight to the existence of an alternative mechanism, namely, whether it is appropriate to have regard to the special trial procedure provided by Part II of the Mental Health (Criminal Procedure) Act 1990. The Court will need to determine whether, if necessary, any further proceedings, such as a fitness hearing, would constitute an abuse of process (see WRC 59 NSWLR 273 at 280-282).

The Applicant’s Case

22 The evidence before the Court was presented by the defence. It comprised an affidavit from the instructing solicitor; an affidavit from each of the applicant and Mrs Burke, the applicant’s wife; reports from Dr Bruce Westmore, psychiatrist; Dr John Lee, the medical practitioner who cared for the applicant and Dr Henry Eisenberg, cardiologist.

23 The various charges put the first of these sexual assault allegations as occurring between December 1992 and December 1994. The most recent of the alleged offences is said to have occurred between December of 2000 and December of 2001. There are nine counts in all. Six are said to have occurred when the complainant was under ten years of age; three are said to have occurred when she was under 16 years of age.

24 Particulars supplied by the Crown put the first of these offences as occurring when the complainant was about three or four years old. The Crown particulars put the final charges occurring at a time when the complainant was in Year 6 and aged 11. An act of digital intercourse without consent is said to have occurred with the complainant when she was about nine years old.

25 The applicant, in his affidavit, claims he is 83 years old; from his appearance and history I am prepared to accept that this is so. He has been married to his wife for 52 years. He acknowledges a familiar relationship with the complainant.

26 In an untested affidavit he gives evidence of harsh and oppressive wartime experiences from which he still suffers post traumatic stress, including sleep problems such as nightmares, restlessness, tossing, turning and, on occasions, lashing out in his sleep.

27 He had triple bypass surgery in 1995 and surgery for bowel cancer in 2001. He was hospitalised in 2003 for an irregular heartbeat and fluid retention, as I understand it, around the heart. He experiences frequent pain, emanating from a shrunken and degenerated disc in the lower back, restricting his mobility. He suffers sleep disturbance as a result of this pain. He suffers tinnitus. He also suffers depression. He has been a diabetic for 20 years and injects insulin twice daily.

28 His wife, who was not required for cross-examination, generally supports his evidence. She also notes his concentration to be poor and gives, as an example, his difficulty in operating the remote control and selection of incorrect TV channels. She notes the applicant increasingly relies upon her for help in dressing, in monitoring his insulin injections and oversighting his selection of pills when filling the weekly medication holder. She reminds him when his monthly INR blood tests for Warfarin and quarterly diabetes tests are due. She reminds him to take his prescriptions to the chemist. She takes him to his medical appointments. She notes there are occasions when he is unsure where they are, although the site concerned has been a regular point of reference in past trips. She speaks of him in terms suggesting an onset of dementia.

29 Dr Lee’s practice is located at the North Ryde Family Medical Practice. The applicant has been attending that practice since 1961. Dr Lee has been attending on the applicant since October 2003. In his opinion, there are nine conditions continuing to impact upon the applicant; these include anxiety; diabetes mellitus type II (1979); hypertension (1980); angina (1991); aortic stenosis (1995); degenerative lumbosacral spine with sciatica (1995); atrial fibrillation (2003); congestive cardiac failure (2003); reduced short term memory (MMSE 24/30)(2005).

30 Of the applicant’s medical condition, he offers an opinion on two aspects that I am prepared to accept. He has some experience in cardiology. I am prepared to receive his opinion on this topic:

“Mr Burke’s heart disease has been relatively stable over the last three years since his recovery from an inferior myocardial infarction in 2003. His main cardiac disease of concern is his aortic stenosis for which he is undergoing close supervision with repeat echocardiography. Should his aortic stenosis worsen, then his cardiologist may recommend open-heart surgery for aortic valve replacement.”

31 The other matter Dr Lee comments on appears to date from 2005. He says:

“Mr Burke also has evidence of reduced short term memory. He scored 24 out of 30 for his mini mental state (MMSE) examination and this is consistent with mild cognitive impairment, most likely due to earlier dementia. The level of cognitive impairment would cause mild impairment with the recall of recent events or information, mild forgetfulness and mild difficulty in naming objects and finding appropriate words.”

32 Dr Lee notes the potential for a criminal trial to precipitate further anxiety which, together with mild cognitive impairment, would make it difficult for the applicant to provide an accurate account of past events.

33 The applicant, on 16 November 2006, claimed to be taking Zoloft for depression; indeed, he had been taking Zoloft since 2 November 2006, however, Dr Lee’s reports refer to it being withdrawn on 21 November 2006 because it was not suiting the applicant.

34 Dr Lee also foresaw a criminal trial elevating the applicant’s blood pressure, thereby placing extra strain on his heart. He did not see that as being in the interests of the applicant. He recommended, prior to the trial, a full review by the applicant’s cardiologist.

35 In his report of 18 May 2006, Dr Lee was asked to report regarding the applicant’s fitness to stand trial. He summarised his answers according the “format requested”. The Presser test is really an area of specialised expertise. I am not satisfied Dr Lee qualifies in this specialised area. The very fact that a “format requested” was supplied to him supports my sense that he is not qualified. There is a final report of 9 September 2006 that clears up the Zoloft issue.

36 Dr Eisenberg is the cardiologist. He has been treating the applicant since 1989.

37 A review of the applicant was carried out on 20 June 2006. In that review, Dr Eisenberg reaffirmed an opinion he expressed in a report on 19 May 2006 that the applicant had a very serious cardiac disease, though he remains clinically stable. His final opinion was that it was unlikely he would stand up to the rigors of a lengthy criminal trial.

38 He said:

“I have been seeing this 82 year old man intermittently since May 1989 when he was referred with a history of typical exertional angina. He was an insulin dependent diabetic with a background of hypertension and obesity. His angina quiesced on therapy but reproduced in February 1995 when he was noted to have mild to moderate calcific aortic stenosis. He underwent a coronary angiogram and was found to have quite severe triple vessel coronary disease and underwent coronary grafting at RPAH in October 1995. His aortic valve was not replaced at that sitting.

From the cardiac point of view, he made reasonable progress but, unfortunately, needed a hemicolectomy in 2001 for a colonic cancer. He came through that procedure quite well, though remained very overweight and was developing complications of his diabetes. He sustained a right retinal artery embolus in 2002.

In 2003 he developed chronic atrial fibrillation, while a myocardial perfusion scan showed a dilated left ventricle with infrosceptal scar but not evidence of intercurrent ischaemia.

At last review in December 2005 he was well compensated, despite a dilated left ventricle and moderately severe calcific aortic stenosis. He had preserved global left ventricle systolic function; his diabetic control was good and effort tolerance reasonable for his 82 years.

In summary, therefore, Mr Burke is in his eleventh year post-GABG. He has chronic atrial fibrillation, moderately severe calcific aortic stenosis, diabetes and surgically treated colonic cancer. His progress is quite guarded. Calcific aorta stenosis inevitable progresses and it is doubtful that he would be considered for an aortic valve replacement or re-do coronary surgery given his multiple morbidities. Notwithstanding his current wellbeing, his long term outlook beyond five years is poor.

Inevitably, a protracted criminal trial will have significant stressors on his health and wellbeing.”

39 Dr Bruce Westmore presented a report on the status of the applicant’s dementia. Dr Westmore was required for cross-examination.

40 Dr Westmore had examined the applicant on 31 August 2006. He understood his brief was to examine the applicant upon, “the basis that his health and memory are such that a trial would be unfair”.

41 The applicant was asked by Dr Westmore how he wanted to plead. The applicant said, “Not guilty of anything”. When asked by Dr Westmore, “Are you telling me you did not do anything in relation to the alleged offences?” the applicant replied, “That is absolutely true.”.

42 The applicant thought the events leading up to the charges occurred two years ago but could not provide any dates. He was at his current domestic situation; he gave details of the relevant family structure. He was asked by Dr Westmore what it was said occurred in relation to the allegations. The applicant replied, “Well, they didn’t say much. I only saw them once. Two female police officers came to the home. They said they were going to arrest me.” The applicant told Dr Westmore that when he was getting dressed to go to the Ryde police station the officers told him it would not be necessary to go to the station. They told him they would be coming to the house again. Dr Westmore asked what was alleged. The applicant repeated the question and then added, “I don’t really know. My wife will be able to help me out with that.”.

43 The applicant told Dr Westmore that the complainant remained on good terms with him and his family until the charges arose. He accurately described the complainant’s relationship to him. He claimed “he had continued to get on” with the complainant’s father and his other children whom he accurately labelled, gender-wise.

44 He gave a medical history to Dr Westmore. In recent years that medical history is quite complex. The applicant had a book listing his various medicines and was unable, in the absence of the book, to tell Dr Westmore what they were. The applicant supplemented the medical history later in the interview with a further medical matter that he had forgotten, namely, tinnitus.

45 The applicant gave a family history. He was unable to work out the year his father died. I am unsure whether that means the age of the father or the actual year in which he died, (it seems Dr Westmore took a different view) but was able to indicate his father died when he was eleven years old. He knew his mother died in 1975, when he was 58.

46 It would appear, early in the interview, he told Dr Westmore he (the applicant) retired in 1960 and, subsequently in the interview, that he had retired in 1958. Initially, he denied putting his retirement at 1960. When challenged by the doctor he said:

“When I first spoke to you? What did I say? How did I word it? It would only have been 58 then. Well probably around that time. I was in the army for a few years.”

The fact is that the applicant was born in 1923. In 1958 he would have been 35 and in 1960 he would have been 37.

47 He gave a history of being in the army, which was accurate, although why he linked it there is unclear. So far as I can tell, generally speaking, the history that he gave Dr Westmore of the family appears to be accurate. It may be that when he was speaking of 58, that is, “It would only have been 58 then”. He may have been referring to his age when he retired or he may have been referring to 1958, it is difficult to determine.

48 He was asked a number of general knowledge questions. When asked for the capital of the United States he nominated the district of Columbia, which, of course, is where Washington DC is located. He did not know how many children Queen Elizabeth had, nominating three, and incorrectly naming one as Elizabeth. He was able to name Charles but not the other he had in mind.

49 Dr Westmore’s findings of the mental state examination are recorded. He said:

“Mr Burke presented as an elderly man who had a noticeable bilateral Parkinson tremor in the upper limbs. He was neat and tidy and pleasant and cooperative. He maintained reasonable good eye contact. He spoke spontaneously and expansively. His affect was intense, probably anxious, and his mood state generally restricted. No psychotic symptoms were identified. He appeared to have some cognitive difficulties, which I thought were probably age related.”

I note that no other doctor has diagnosed any Parkinson issue; that may be something that ought be investigated.

50 On a mini state examination the applicant scored 26/30, a notional improvement of 2 from his last score in 2005.

51 Dr Westmore’s diagnosis included:

“Axis I. ? post traumatic stress disorder. This provisional diagnosis is based on his history of experiencing war-related trauma and continuing to have war nightmares.

Axis III. He has multiple health issues, some of which may be aggravating his organic brain impairment.

Axis IV. The matters now before the Court were the most significant stressors affecting him at the time I examined him.

Axis V. His longitudinal life history suggests that he has probably functioned in the higher range for most of his life but there is clinical and historical evidence now to indicate that his function is declining from a psychological and psychiatric perspective.”

52 Dr Westmore gives, so far as is relevant for these proceedings, this opinion:

“His current physical health is poor, based on the opinions of the cardiologist and his general practitioner. He is showing some evidence of early age-related dementia and on mental state examination. He also has some evidence of anxiety and of a despondent mood state. Based on his longitudinal life history and his accomplishments in general, it would be my view that he would have a reasonably good working understanding of the Presser issues. His memory is not so impaired that he would not be able to comprehend that he was involved in an adversarial system and he has a basic understanding of the allegations against him and wants to plead not guilty to the charges. If the legal proceedings are complex and protracted, that is if they last for some weeks, then I would expect him to have some memory problems for details which might be raised during the trial. His recall of dates and times is likely to be compromised and he indicated that he has a problem with time, thinking things occurred in different timeframes from when they actually did occur. This particular cognitive problem, combined with his memory difficulties, would make it difficult for him to provide ongoing instructions to his legal advisers. It would also make it difficult for him to provide a detailed defence, either when giving evidence-in-chief or in cross-examination. The presence of anxiety has potential to aggravate his cognitive difficulties, compounding the organic based memory problems he is already demonstrating clinical evidence of.

I believe that the issues of “fairness” is one for the Courts rather than the psychiatric opinion but, based on his history and clinical presentation, it would be my view that his age-related dementia will compromise his capacity to effectively participate in a trial, particularly in terms of giving evidence to the best of his ability and providing ongoing instructions to his lawyers should the legal proceedings be protracted and complex in their detail.”

52 Following conversations with counsel for the applicant, Dr Westmore became aware that the trial may last as long as five days. In the light of that, Dr Westmore’s opinion was:

“Due to his cognitive problems, I would anticipate him to have some potential memory difficulties over a five day period but I cannot say definitively that he would be unfit, purely from a cognitive perspective, during that period.

It would, however, be vitally import (sic) for his legal representatives to check with him during the proceedings to ensure that he is following what is occurring, that he is able to register, retain and recall factual information given during the trial and that he is able to formulate ongoing instructions to enable him to effectively participate in the trial.”

53 In the course of his evidence, Dr Westmore returned to the theme of the applicant’s short-term memory problem several times. Dr Westmore expressed concern that if the applicant had memory problems over 24 hours then he may not be able to provide information and instructions arising from the trial because he might not remember all the details. In such a situation the applicant may qualify as being unfit to be tried (see p.5/45-50; p.10/35-43; p.12/30-36).

54 When asked if the dementia that is the cause of his short-term memory problems was stable, Dr Westmore noted that, assuming the dementia was age-related, then the dementia being experienced is a progressive disease.

Findings of Fact

55 From the defence evidence a number of facts emerge. The delay between the first alleged sexual offending and charge is between 13 years, at worst, and 11 years, at best. There is then a gap of four to six years between the first alleged conduct and the second, which was said to have been on or about 1 March 1998. Between that alleged offence and all subsequent alleged offending, the time span is one of three years. Between complaint and first charging is four and a half months. Between the second complaint and subsequent charging is four months. Committal was one month later. While the delay is not the fault of the applicant, nor is there any delay on the part of the Prosecution, such delay as there is occurs because a young girl, it would seem on the Crown case, hesitated in making a complaint.

56 While the whole picture is important, it is useful to examine various aspects covered by each of the doctors upon whom the defence rely.

57 The applicant is 83 years old; there is physical and mental health deterioration visited on him, not only by the passage of years but also by life’s experiences. In the context of a trial, the matters that appear of concern to Dr Lee included anxiety, stress, elevated blood pressure, extra strain upon the applicant’s heart and the onset of depression, which, in my view, appears reactive to the trial. There is an interaction, perhaps commencing with anxiety and stress, leading to increased heart strain, but his assessment is that it would not be in the [medical] interest of the applicant to be subjected to stress.

58 The applicant is prescribed Glyceryl Tr tabs to dissolve under the tongue, if required, for chest pain. In those circumstances, the significance of Dr Lee’s opinion escapes me for its vagueness. Given the words chosen by Dr Lee, I do not regard him as saying the applicant’s life is placed at risk in a criminal trial or that any permanent injury is likely to occur.

59 Dr Lee is also concerned with the mild cognitive impairment and that the applicant would experience difficulties providing an account of past events. I will return to this topic when I review the evidence of Dr Westmore.

60 Dr Eisenberg recognises that “a protracted” criminal trial will have significant stressors on the applicant’s health and wellbeing, and later he said, because of his serious cardiac condition, “I think it unlikely he would stand up well to the rigors of a lengthy criminal trial.”. Neither of these opinions is expressed in terms of dramatic consequence or longterm harm. Each opinion recognises the likelihood of deterioration from the clinically stable condition the applicant currently enjoys in the event of a protracted trial.

61 The trial has an estimate of five hearing days. There is no doubt five to eight days of trial would be stressful but there are steps the Court can take to reduce stress and to relieve intense anxiety arising from the Courtroom.

62 Dr Lee and Dr Eisenberg focus particularly upon the physical elements. The effect of their reports is that the applicant will experience stress that will impact adversely upon his physical ailments. But neither doctor goes so far as to say that in so doing the applicant is put at a risk of longterm damage or worse. Put another way, neither says that it would be inhumane for the applicant to stand trial. Both are cognisant that the applicant now is experiencing mild dementia.

63 I have looked particularly to Dr Westmore and his guidance on mental health issues. By and large, I was impressed with the detail of the history taken by Dr Westmore. That is to say, the applicant’s recounting of his history with the investigating police had a detail which seemed to me to suggest that the dementia may not be as advanced as one might fear. It appears to be correct as to detail. On his understanding of facts, he may have spoken to police 15 to 18 months earlier than in his conversation with Dr Westmore. I do not see it as a grave error to describe that as about two years. His memory was, he said, that is was two years ago. That precision in timing on the matter is not, in the context given, other than understandable.

64 The applicant seemed clear in his mind he wished to plead not guilty “because he did nothing”. Dr Westmore was concerned that the applicant, having read the police facts sheets some six months earlier, could not remember them. There are, in all, nine charges. Most of them, but for the dates, are expressed in identical terms. The applicant’s capacity to relate a set of facts to a particular count, for example count 5, would be remarkable. I accept that it is of significance he presented as recalling no detail but, if Dr Westmore was expecting him to recall it all, then such an expectation is, in my view, unrealistic.

65 The applicant told Dr Westmore nothing happened. Accepting the applicant’s assertion, the absence of precise memory of detail in the facts sheets, which would, on his account, be foreign to him, is consistent with his claim that nothing happened.

66 Dr Westmore diagnosed “some evidence of early age dementia, evidence of anxiety and some despondency”; he would expect him to have some memory problems. The diagnosis is that the dementia is likely to be progressive. Dr Westmore is unable to say that the applicant is unfit to be tried and unable to say he is not unfit. At highest, he could put it at borderline. He does opine that the applicant’s age-related dementia will compromise his capacity to participate effectively in a trial.

67 At the end of the day, Dr Westmore’s position is that the applicant’s fitness or unfitness will only be able to be tested if and when the proceedings start. In the portion of his opinion that I quoted, he put some store on the need for those who represent the applicant to be aware of the fitness issues.

68 It is to be remembered the onus is upon the applicant to establish that the rare or extreme exception should be made in this case. An overview of the material he relies upon paints a picture of an aging person with real physical and growing mental disabilities. But none of the experts puts his physical or mental health at a point where it would be inhumane to conduct a trial, or that to press on with a trial, would offend common humanity. There is nothing in the evidence which suggests that were a trial to proceed the overall condition of the applicant would be so precarious that the trial itself would have lost its character of being a trial contrary to law.

69 In this case, given the frailties of the applicant, it is important that every step be taken to ease anxiety and stress and the follow on consequences earlier referred to. If the applicant so wishes, I will order that his trial be conducted in morning sessions only, starting at 9.30 and adjourning at 1pm, with a half hour morning tea adjournment at 11am. That would divide the morning into two one and a half-hour sessions. In those circumstances, the loss of the normal daily hearing would amount to about one and a half hours. That would have the effect of extending the length of the trial to about eight or nine days.

70 The high point of the defence submissions was that the applicant would be impaired in making answer to the charge, whether he gave evidence or not. If he did give evidence he would be exposed to greater risk of inconsistency because of memory impairment rather than deceitfulness and/or inaccuracy from other causes. There are two answers to this submission. Firstly, as the evidence stands, it is at this stage only a matter of speculation and conjecture whether the mental compromise is such that it would have that impact. Secondly, if it should come to be so, then it becomes a matter for a fitness determination.

71 I have considered whether a question of the applicant’s fitness has arisen. Given Dr Westmore’s ambivalence on the question, I have decided that it has not but, if the dementia progresses as Dr Westmore suggests it may, there is a real prospect the applicant’s fitness may be called into question. In the circumstances, one must look to the defence for an indication.

72 If, for any reason prior to the date set down for hearing or, indeed, during the hearing itself, the defence has any reason to raise the issue of fitness, Part II of the Mental Health (Criminal Procedure) Act 1900 would kick in. It permits the issue to be raised by the defence. While the Act seeks the issue be raised before trial, in this case such a proposition may be difficult and the reality of mental fitness may only emerge after the trial has begun and experience in taking instructions may prove to be difficult.

73 The Court also expects, in the event the applicant should suffer a deterioration in physical health during the trial, that the matter would be raised, firstly, with his legal team and, immediately thereafter, by them, with the Court. If appropriate, a pause in proceedings can be arranged. What is speculative and conjecture now may become a firm diagnosis during the trial. If such be the case, appropriate applications can be made and dealt with.

74 On the material before me, there is no case for permanently staying any of the charges. However, in respect of count 1 in the indictment, because of the additional four to six years delay, the very young age of the applicant at the time of the alleged offence and the additional stress that matter must add to the applicant’s overall stress level, there may be good reasons for severing it from the current indictment. That, of course, is either a matter of negotiation between the parties or a matter that may need separate litigation if either side thought it appropriate so to do.

75 The formal order is, the application for a permanent stay is rejected.

76 So, the formal order I make is I stand the matter over to the call-over this Thursday to set a trial date next year. Either party may list the matter, thereafter, before me or Judge Ellis in respect of any case management or fitness issue.

**********