TS v R
[2014] NSWCCA 174
•29 August 2014
Court of Criminal Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: TS v R [2014] NSWCCA 174 Hearing dates: 18 August 2014 Decision date: 29 August 2014 Before: Leeming JA at [1]
Adams J at [3]
Bellew J at [4]Decision: 1. Leave to appeal is granted;
2. The appeal is allowed;
3. The decision of Judge
Huggett of 12 May 2014 dismissing the application for a stay of proceedings is quashed;
4. The proceedings on the Indictment presented against the applicant in the District Court of NSW on 5 May 2014 are permanently stayed.
Catchwords: CRIMINAL LAW - Appeal - Application for a permanent stay of prosecution for multiple counts of sexual assault - Where applicant found unfit to stand trial - Where Director of Public Prosecutions had determined to proceed to special hearing in any event - Where offending conduct occurred more than 40 years ago - Where the making of allegations arose as the result of recovered memory - Where only expert evidence supported the conclusion that such process was unreliable - Where material evidence no longer available due to lapse of time - Where primary judge dismissed application for a stay - Where error in exercise of discretion made out - Where discretion re-exercised - Stay of proceedings granted Legislation Cited: Criminal Appeal 1912
Evidence Act 1995
Mental Health (Forensic Provisions) Act 1990Cases Cited: Barton v The Queen (1980) 147 CLR 75
BP v R; R v BP [2010] NSWCCA 303
FB v R [2011] NSWCCA 217
Grills v R; PJE v R (1996) 70 ALJR 905
House v The King (1936) 55 CLR 499
Jago v District Court of NSW (1989) 168 CLR 23
R v BWM (1997) 91 A Crim R 260
R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492
R v Edwards (2009) 83 ALJR 717
R v Glennon (1992) 173 CLR 592
R v Matovski (1989) 15 NSWLR 720
Saoud v R [2014] NSWCCA 136
Walton v Gardiner (1993) 177 CLR 378Category: Principal judgment Parties: TS - Applicant
Regina - Respondent (Crown)Representation: Counsel:
N Steel - Applicant
N J Adams - Respondent (Crown)
Solicitors:
Mr P Williams - Criminal and Traffic Law - Applicant
Director of Public Prosecutions (NSW) - Respondent (Crown)
File Number(s): 2010 / 381706050 Publication restriction: See [6] below Decision under appeal
- Date of Decision:
- 2014-05-12 00:00:00
- Before:
- Huggett DCJ
Judgment
LEEMING JA: As Bellew J observes, it is no small thing to order a permanent stay of criminal proceedings. The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The emphasis is that of the High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], demonstrating that a mere risk of unacceptable injustice or unfairness is insufficient. The High Court's emphasis also illustrates that an application for a stay does not involve the court declining to exercise its jurisdiction, contrary to what was said by the primary judge. Instead, the court's jurisdiction having been properly invoked, it is exercised, and exercised decisively - bringing the controversy to an end without a determination of the merits - but only if the heavy onus borne by the accused is discharged.
I agree with the reasons and conclusion of Bellew J. In particular, I agree that this is a case where error has been shown in the decision of the primary judge, that this should Court itself to exercise the power, that it should do so with the advantage of further evidence not before the primary judge, and that the heavy onus borne by the accused has been discharged - essentially by reason of the uncontested expert evidence of the unreliability of the memories recovered 37 years later coupled with the demonstrated evidence of prejudice to the defence case. The proceedings should be permanently stayed.
ADAMS J: I agree with Bellew J and the additional remarks of Leeming JA.
BELLEW J: On 5 May 2014, at the commencement of a special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 ("the Act"), the applicant was arraigned before her Honour Judge Huggett on an Indictment containing 47 separate counts alleging that between 22 July 1973 and 30 November 1973 he committed various sexual assaults upon a male to whom I shall refer as "the complainant". Having been arraigned, the applicant sought a permanent stay of the proceedings.
In a judgment delivered on 12 May 2014, her Honour dismissed the application. The applicant now seeks leave, pursuant to s. 5F of the Criminal Appeal Act 1912, to appeal against her Honour's order.
A non-publication order made in the District Court remains in force, preventing publication of any material which might identify the applicant, the complainant, or the school to which reference was made in the evidence.
The case against the applicant
In the 1970's the complainant attended a junior school at which the applicant was a teacher. He alleges that over a six month period in 1973, he was sexually assaulted by the applicant. The offences are alleged to have occurred at one of three locations, namely:
(i) in the applicant's residence at the school;
(ii) in a vehicle said to have been owned by the applicant; and
(iii) at a school camp.
The circumstances in which the allegations emerged
Although the offending is alleged to have occurred in 1973 it was not until 21 October 2010, some 37 years later, that the complainant made a statement to the police. Having set out in that statement the allegations against the applicant, the complainant explained the circumstances of the disclosure of his alleged offending (AB 101):
"... I never discussed with anybody what (the applicant) had done to me. I have been told by my therapist that due to the trauma and pain inflicted by (the applicant) I suppressed the memories for thirty seven years until they came back in late July 2010. In January 2010 my family started attending a family therapist ... We attended regular sessions and through that (my therapist) believes that because my youngest son is twelve and issues with my eldest son the memories of (the applicant) came back to me. I have discussed my memories of (the applicant) with (the therapist) and in late August I went to (my school) and spoke to the headmaster...about what had happened to me. I have also told my wife...and my parents...and then my sister..."
The complainant gave evidence at a committal hearing about the circumstances in which his recollection of the alleged offending emerged. When asked (AB 118 L37) whether there had been a particular incident or episode in which he remembered the alleged offending, he said:
"No, no. There was no - I couldn't - I couldn't identify a specific episode. All I know is that one day they weren't there, the next day they were there. And because of my distress, I'm a little hazy as to the exact date when they came back".
The complainant said that once he had disclosed the alleged offending to his therapist (to whom I shall refer as "A") the other issues with which they were dealing "took a back seat" and that from that point onwards their discussions were "purely about the memories that had come back" (AB 121 L19-37). He explained that the therapy administered to him included the following (AB 122 L2-5):
".... She said one of the things that you might like to do is write a letter to (the applicant) about how you feel. So as I was writing that letter I decided to basically write the other statement that I did which was effectively a memory dump".
The "other statement" is a typewritten document prepared by the complainant (AB 139-142) which contains a partial account of the alleged offending. It also includes the following (AB 141):
"I can't remember a lot of what happened and at the moment I am only getting flashes of memories. ... I am also getting memory flashes of watching a boy face down with a man on top of him, but I can't see what is happening to the boy.
...
I am still getting memory flashes of what happened during those sessions but at the moment I don't know if it is fact or my memory playing tricks. Until (the therapist) and I have worked through these flashbacks I cannot definitely say what happened to me during all of these sessions. I can be sure about what has been described in this statement because it is very real and vivid to me."
When taken to the first of those paragraphs in his evidence at the committal the complainant said (AB 123 L3-6):
"Well, that's - that was my sort of interpretation of what memory this was, this traffic jam of memories. Yes I do accept the fact that I wrote that, but I'm not qualified in psychology so I was merely sort of putting down what was basically my interpretation of what it was".
The complainant told the court (AB 122 L19-21) that this document was prepared "at the early stage of starting to unpack this traffic jam of memories that I actually had". When asked about the process of his recollection he said (AB 124 L33-34):
"Well they were all there. I knew they were all there but it was just basically processing them".
When asked how he knew that "they were all there" the complainant replied (AB 124 L40-48):
"Because I - I knew that - that - I knew these incidents had happened but I didn't know the terms dates. I knew - I had points of - I had points where in a timeline I knew that things happened. Whether I could process what had happened or whether I ignored it because I needed to emotionally, I don't know, that's something you'd have to ask (the therapist). I'm not qualified to answer that sort of question. But for me I knew that the incidents had happened but I didn't know the timings at the point, because I'd had the points of reference of my birthday, the holidays, the long weekend and the camp - which was the camp".
What asked (AB 125 L36) whether he had concerns that his memory was "playing tricks" the complainant said:
"Yeah, I'd - I'd - I'd definitely admit to that. I would say any reasonable normal person who suddenly is having visions of them being, and memories of them being abused would definitely be worried about it".
On 1 May 2014, several years after he made his statement to the police, the complainant advised the Director of Public Prosecutions of the following (AB 159):
"In the last session with (A) on 19 April 2014 I disclosed to her that I was experiencing new memories in relation to the Penile Penetration which occurred between 2nd and 4th October 1973.
I am now remembering the feeling not only of pain but the feeling of hair and skin against my back and also of pressure on my back".
A also gave evidence at the committal proceedings. She said (commencing at AB 111) that she commenced counselling sessions with the complainant in January 2010 and that on 7 August 2010 she had received a text message from him in which he had "flagged" some issues. She then saw the complainant on 13 August 2010 at which time he told her of the alleged offending. She explained (AB 111) that on that occasion she was told by the complainant that he "had some recollections for the first time of what had occurred." When asked whether or not there had been any aspect of the therapy which had been directed towards the complainant reviewing aspects of his life or delving back into his memory, A responded:
"He hadn't been my primary client. I'd been doing family work so the work may have brought some memories back but there was nothing specifically with (the complainant) around that".
A said that her next consultation with the complainant was on 24 August 2010. She said that she did not actively "work through" the specific incidents giving rise to the alleged offending, but engaged in what she described (at AB 112 L1) as "active listening". When asked about what the complainant had disclosed to her, A said (AB 113 L34-36):
"His disclosure was fairly clear I think in - you know he didn't actually - (the complainant) didn't actually give me a lot of detailed information but would say he would be distressed by some of the memories that he was having."
Q: Do you have any recollection of assisting him working through his memory flashes to assist him work out whether it was a valid and real memory?
A: M'mm.
Q: Did you have any interventions in that regard?
A: If we were talking about a flash back situation which is more commonly related to post traumatic stress disorder, where he was actually going back into believing that he was in the moment where he was actually having sensations, whether it be auditory or physical sensations as if the process was actually happening to him, I would work through that at that time and once again, in terms of how would he bring himself back into the present if he was overwhelmed in a situation of feeling like he was back in that moment, which often can happen with flashbacks."
A explained (commencing at AB 114 L1) that her primary aim in providing counselling to the complainant was to relieve the distress from which he was suffering. She said then said (AB 114 L11-18):
Q: So from your perspective what you understood that you were getting was a fairly complete picture of his memory, not a fragmented one, is that right?
A: Yes. As I say there wasn't a lot of description to me but just that he was having - at times he was - there was certain catalysts that would bring recollection to him.
Q: Without disclosing, were those catalysts situational were they?
A: Sometimes auditory.
The applicant's interview with police
The applicant was interviewed by police on 11 November 2010. At Q 35 (AB 259) the general allegation made by the complainant was put to him, to which he replied:
"Well, you know, I understand that, but I, as I said, I can't remember the guy at all, to be honest, um, and I know I did those sort of things. Ah, I can't say yes, I did it to him ...."
The applicant's reference to having done "those sort of things" was a reference to the fact that in 1995 he was convicted and sentenced to a term of imprisonment for similar offending, committed between 1969 and 1975. The Crown relies upon these matters as tendency evidence. I have discussed this issue in more detail below.
When interviewed by police the applicant admitted that he:
(i) was a teacher at the school at which the complainant attended (Q48-50; AB 260);
(ii) owned a "Kombi" vehicle, which was the same make of vehicle in which some of the offending was alleged to have occurred (Q52; AB 261);
(iii) took groups of boys to a camp in the same area as that in which some of the offending was alleged to have occurred (Q131-133; AB 268).
Commencing at Q134 (AB 268) the specific allegations made by the complainant were put to the applicant. The applicant repeated (at Q154; AB 272) that he had no recollection of the complainant and variously told police that he had no recollection of acting as the complainant alleged. However at Q174 (AB 277) the applicant said:
"I believe everything he said is bullshit ....."
The applicant's later answer to Q182 (AB 279) typified his general response to questioning regarding the specific allegations:
"... I just don't believe a word of it ...He's told one great lie there ... what he said is the imagination, a way to get more money. That's what he's after. He wants to get more money than he gets what he gets but that's what he's after. Good on him. Go for it. Go for it and get some money. If I did do something to him to start with, getting, getting money where he can, no worries. But what he said there is rubbish".
The applicant's reference to the complainant "getting money" is seemingly a reference to the fact that the complainant has engaged a solicitor to act for him in relation to a claim for damages against the applicant and the school (AB 316).
The applicant's fitness to stand trial
The committal proceedings at which the applicant and A gave evidence concluded on 5 August 2011, at which time the applicant was committed for trial in the District Court. On 5 February 2013 the matter came before Judge Frearson SC who was asked to determine the question of the applicant's fitness to stand trial.
In a judgment delivered on 6 February 2013 (AB 223-233) his Honour found the applicant unfit to be tried and referred the matter to the Mental Health Review Tribunal. On 6 August 2013, the Tribunal determined that the applicant would not, during the period of 12 months after the finding of unfitness, become fit to be tried (AB 234-254).
On 26 August 2013, the Director of Public Prosecutions advised the court, pursuant to s. 19 of the Act, of his intention to proceed with the charges against the applicant. A special hearing under s. 19 of the Act was fixed to commence before Judge Huggett on 5 May 2014.
The application before the primary judge
Having been arraigned before her Honour, the applicant moved on a notice of motion (AB 82) which sought an order for a permanent stay of the proceedings on grounds which were pleaded in the following terms:
(i) "The continuation of these proceedings by way of special hearing will involve an unacceptable injustice or unfairness to the applicant.
(ii) The allegations date back to 1973, some 41 years ago, and as a consequence the applicant will be severely prejudiced in his defence by this extraordinary delay.
(iii) The allegations in this matter are the result of repressed memories which the complainant allegedly experienced for the first time in 2010 and there are significant issues as to the potential unreliability of such evidence.
(iv) The applicant suffers from poor health such that he is unfit to be tried and he has cognitive and memory deficits that significantly impair his ability to defend these allegations.
(v) The circumstances involved in this prosecution are so unfairly and unjustifiably oppressive as to constitute an abuse of process".
The evidence before the primary judge
The notice of motion was supported by an affidavit of the applicant's solicitor, Mr Williams, of 5 May 2014 (commencing at AB 84). That affidavit was admitted without objection and Mr Williams was not cross-examined on its contents. I have already referred at [8]-[24] to some of the evidence which emerges from the material annexed to Mr Williams' affidavit. However it is necessary for me to make reference to other parts of the affidavit which were before her Honour.
The applicant's difficulties in obtaining evidence
Mr Williams deposed (commencing at AB 85) to various difficulties which the applicant had faced in obtaining relevant evidence. These difficulties, the majority of which stemmed from the long period which had elapsed since the alleged offending, included the inability to obtain documentary evidence which was corroborative of the applicant's instructions.
In particular, bearing in mind that some of the alleged offending is said to have occurred at the applicant's school residence, the applicant has instructed his solicitors that he was not living at the school at the relevant time, but was in fact living at another school with a friend (to whom I shall refer as "N"). In these circumstances, subpoenas were issued to each school for the production of documents which might corroborate those instructions. No documents were produced. The subpoena directed to the school at which the applicant was employed responded that it had "been unable to locate any documents" (AB 85). Whilst it was not expressly stated, it is reasonable to infer that the inability to produce documents in response to the subpoena had come about due to the passing of time.
The applicant's state of health
The affidavit of Mr Williams also annexed a series of medical reports concerning the applicant's health (commencing at AB 143). Without canvassing the entirety of that material, the evidence established that the applicant:
(i) has a history of cardiovascular disease and stroke (AB 197);
(ii) was found to have extensive infarcts of the left temporal and occipital lobes which gave rise to cognitive deficits (AB 169);
(iii) has auditory and visual memory loss (AB 176; 196; 198; 207);
(iv) suffers from aphasia, an impairment of the capacity to use words caused by lesions in the cortex (AB 144);
(v) has an auditory attention span falling within the borderline range (AB 196);
(vi) has impaired executive functioning (AB 197); and
(vii) suffers from a number of physical ailments including obesity, hypertension and osteoarthritis (AB 207).
The expert medical evidence
The affidavit of Mr Williams also annexed a series of reports provided by Dr John Roberts, a Consultant Forensic Psychiatrist. Dr Roberts had been asked by the applicant's solicitors to express his opinion concerning (inter alia) the process by which the complainant came to recall the alleged offending. For that purpose Dr Roberts was provided with various material, including the transcript of the evidence given by the complainant and A at the committal proceedings.
Dr Roberts described the complainant's account of the process by which he came to recall the allegations as "recovered memory", before expressing the following opinion (commencing at AB 156):
"The material suggests the extensive involvement of (A) in regard to the recollections described by (the complainant). The probability that (the complainant's) recollections are iatrogenically induced must be considered on reasonable psychiatric grounds as highly probable.
I refer to a number of statements made by Professional Organisations in relation to recovered memories and note in 1993 The American Medical Association stated that recovered memories are of "Uncertain authenticity which should be subject to external verification. The use of recovered memories is fraught with problems and potential misapplication".
In 1993 The American Psychiatric Association stated that "It was impossible to distinguish accurately between true and false memories.
In 1994 the Council and Scientific Affairs of the AMA concluded and recommended that accusations of Childhood sexual abuse based on recovered memories cannot be proved or disproved and it is not known how to distinguish true memories from imagined events.
The American Psychological Association in 1994 comments that "Most people who were sexually abused as children remember all or part of what happened to them. The American Psychological Association does not discount memories of abuse that have been forgotten for a long time to be remembered but such mechanisms are not understood but comment further on the possibility to construct convincing pseudo-memories for events that never occurred."
Having noted that the applicant had told police that he was not able to recall the complainant, Dr Roberts then said (AB 157):
"(The applicant) is suffering from significant brain damage which if it is assumed that he is incapable of remembering of (the complainant) and assuming that contact between (the applicant) and (the complainant) occurred, the demonstrable pathology would account for the lack of ability to remember.
There is a physical basis demonstrated in terms of brain damage that in terms of the location of the brain damage demonstrated would potentially affect memory.
While (the applicant) fulfils the demands of Presser standards, his ability to give evidence in regard to matters of fact and his capacity to respond to specific questions in relation to this matter is such that if it is assumed that his brain damage prevents him from recollecting any connection with (the complainant), if it is assumed that such a connection occurred, he would not be able to give any evidence in regard to any such presumed connection.
In regard to recovered memory, the history given is indicative of recovered memory having occurred. This occurred in the context of therapy being given by a social worker. The evidence is of the social worker interfering in this process - memory recovery during therapy is highly suggestive of iatrogenic factors.
In order to comprehensively assess what appears to be apparent from evidence provided, it would be desirable on psychiatric grounds to review all aspects of the therapies engaged in by A to obtain a complete picture of her level of intervention.
In summary, there is conclusive evidence of recovered memory and there is a physical basis for (the applicant) not being able to remember."
Dr Roberts, who was the only medical expert retained in the proceedings, also gave evidence before the primary judge. In doing so, he expressed the following opinions, namely that:
(i) this was a "clear cut" case of recovered memory, within the definition of that term as it appears in the relevant literature (AB 32 L22);
(ii) it was probable that A had played a role in the complainant's memory emerging (AB 32 L41-50); and
(iii) allegations based upon recovered memory are universally regarded by psychiatrists as being unreliable (AB 20 L44-AB 35 L2).
When asked to explain the difference between a recovered memory and a normal memory Dr Roberts said (at AB 31 L33 and following):
"...The difference is that in what's so called recovered memory is that it is alleged by the proponents of that pathology that what happens is that due to a traumatic event, recollections of that traumatic event are suppressed and stored in a pristine manner without the knowledge of the person concerned. So they are meant to have no knowledge of the traumatic event but it is stored in whatever location. Some people refer to it as being stored in the subconscious, other people talk about bodily memory. But the bottom line is that the evidence for the repressed memory is nil, it has never been shown to exist and it is a hypothesis based on a Freudian construct, which again is purely hypothesis and the evidence is really to the contrary, that if you speak to people who've been involved in traumatic events, such as prisoners or (sic) war, people from concentration camps, people who've served in battle, they have a recollection of the trauma that they've suffered. So the evidence for it is not there, to some degree it is tending to be of iatrogenic and the evidence given in court in my view very strongly supports recovered memory as being present."
Dr Roberts explained (at AB 32 L7 and following) that the evidence was strongly supportive of the complainant having a recovered memory. This, he explained, was because on the account of the complainant, he had no memory of the incidents at all at one point, but his memory had returned to him some 37 years later.
When asked whether or not A had played any role in the emergence of the complainant's memories Dr Roberts said (at AB 32 L43-50):
"One cannot give a yes and no answer to that. I think on grounds of probability this seems to be the case. The reason why I say that, is that the memories appear to have returned in the context of therapy in which matters of a sexual nature were being dealt with, his son's homosexuality. Sexual matters were being brought up and after a session in therapy relating to this concern, very soon after, I can't recollect from the records whether it was a day or some days, he texted (A) and asked for an urgent consultation. So it appears, simply because of the chronology of events, that it is probable that what had happened at the therapy session gave rise to certain processes which resulted in the emergence of recollections of events which are in essence a repressed memory."
Dr Roberts expressed the unequivocal opinion that a recollection of events which was based upon recovered or repressed memory was unreliable. In particular he said (commencing at AB 34 L44):
"A wide variety of learned bodies, the Australian New Zealand College of Psychiatrists, the American and the British and the Canadian equivalent, all are of the view that what is known as recovered memory is forensically unreliable. So it really cannot be relied on as an account of matters of fact and I think that the bottom line is that independent corroboration is the ultimate gold standard and often the courses cannot occur. But recovered memory is not regarded as being forensically reliable and it differs in that case from the so-called normal memory which may not be reliable either but it is certainly less so and cannot be relied upon."
Although Dr Roberts was cross-examined at some length, his evidence that this was a "clear cut" case of recovered memory was not directly challenged. Further, although questions were put to Dr Roberts in cross-examination (AB 26 L39-AB 33 L23) regarding the role played by A in the emergence of the allegations, nothing he said eroded, in any way, his evidence in chief concerning the probability of A's intervention and its effect.
Most importantly however, Dr Roberts' evidence as to the opinions of the broader psychiatric community concerning the reliability of allegations based on recovered memory was not the subject of any effective challenge in cross-examination. On the contrary, his opinions were confirmed. When asked in cross-examination why such evidence was unreliable, Dr Roberts responded (AB 46 L30 and following):
"The consensus of the world bodies of psychiatrists and psychologists say that that form of memory is not forensically reliable. I am quoting what all learned bodies in this regard have said and come out with consensus statements. The form of memory that comes back is pristine detail after apparently not being in existence for decades or not being in existence, it doesn't matter whether its decades or not, is regarded by the learned authorities throughout the world as being forensically unreliable and being forensically in essence dangerous. If you have recovered memory, you can't rely upon it in the forensic sense. The only way of it (sic) you can assume that it might be true and accurate, and that is also the opinion of the learned bodies, is by independent corroboration of the events. It's not my words, it's what the position statement is of all learned bodies in my specialty and in psychology."
The ground of appeal
Proceedings brought under s. 5F of the Criminal Appeal Act 1912 do not proceed by way of rehearing. The role of this Court, if leave is granted under the section, is to review the correctness of the interlocutory decision: R v BWM (1997) 91 A Crim R 260 at 264 per Hunt CJ at CL. Against this background, the applicant relied upon a single ground of appeal before this Court which was in the following terms:
"The learned presiding judge erred in refusing to order a permanent stay of the proceedings to be tried by way of special hearing under the Mental Health (Forensic Provisions) Act 1990".
The remedy sought before the primary judge was a discretionary one. In those circumstances, this Court will not intervene unless it can be established that there was some error on the part of the primary judge which caused the discretion to miscarry: House v The King (1936) 55 CLR 499.
To a large extent, the written submissions filed on behalf of the applicant agitated the same arguments which had been advanced before the primary judge in support of the application, without precisely articulating how it was said that her Honour had erred in the exercise of her discretion. However in the course of oral submissions, counsel for the applicant argued that when considering the questions of unfairness and prejudice to the applicant, her Honour had misdirected herself and had applied the incorrect test to determine whether a stay should be granted. In particular, it was argued that her Honour had applied her focus to the effect of a special hearing under the Act, rather than the particular circumstances of the applicant's case.
It was submitted by the Crown that the appropriate course was to consider the question of a grant of leave without hearing full argument about whether the Court should intervene. Such an approach was endorsed in R v Matovski (1989) 15 NSWLR 720 at 722 per Gleeson CJ. However in the present case the oral submissions of both parties canvassed not only the asserted errors on the part of the primary judge but aspects of the evidence supporting the application which was before her. In effect, the approach of both parties was to advance full argument as to the correctness of her Honour's judgment. Given that approach there is reason, in this case, to depart from the approach endorsed in Matovski.
Her Honour's reasons
Bearing in mind the error relied upon, the relevant passage of her Honour's reasons is as follows (AB 9-10):
"In relation to Ground 1, a special hearing is a mechanism Parliament has mandated is invoked where there has been a finding of unfitness and the DPP has indicated its intention to proceed with the charges. It is a limited hearing with limited outcomes, one of which includes that the accused could be found not guilty of all or any of the alleged offences. It is recognised that an accused in a special hearing may be unable, for example, to understand the nature of the charge or to decide whether he or she has a defence. Unfitness might prevent an accused giving instructions about matters such as what evidence should be tested by cross-examination. However a Court cannot decline to exercise jurisdiction because a relevant statute might occasion some unfairness: Grills v The Queen (1996) 70 ALJR 905".
It is relevant that this part of her Honour's reasons was in the context of her consideration of ground 1 in the notice of motion, which asserted that the continuation of the proceedings would involve unacceptable injustice and unfairness to the applicant.
Submissions of the applicant
Counsel for the applicant submitted that it was evident from this passage that her Honour had misdirected herself by, in effect, applying her focus to the procedure for a special hearing under the Act as opposed to the circumstances of the applicant's case.
Counsel submitted, in particular, that the issue before her Honour was not whether procedure prescribed by the Act was unfair. Rather, the issue was whether, on the evidence, unfairness would be visited upon the applicant to such a degree as would justify a stay of proceedings.
In these respects, it was submitted that her Honour had considered the wrong issue, and thus erred in the exercise of her discretion.
Submissions of the Crown
The Crown submitted that the procedure for a special hearing under the Act necessarily assumed some degree of mental infirmity on the part of the alleged offender. Viewed in this way, the Crown submitted that it was not open to the applicant to rely upon mental infirmity as a basis upon which to escape the application of the Act, and assert that the continuation of the proceedings was somehow unfair. It was submitted that in these circumstances, her Honour's observations as to the scheme of the Act were entirely correct, and that her reasons did not reflect error.
The Crown also relied upon the fact that an applicant for a stay of proceedings necessarily bears a heavy onus. It was submitted that the applicant had failed, before her Honour, to point to matters of such extreme prejudice which may have justified the remedy which was sought.
Consideration
It has been observed that the procedure for a special hearing under s. 19(2) of the Act has its shortcomings. In Subramaniam v The Queen [2004] HCA 51; (2004) 211 ALR 1 it was observed (at [28]):
"It is self evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason not to construe and apply the Act according to its tenor."
However, the focus of the question before the primary judge was not the operation of the Act and its related deficiencies. The question was whether, having regard to the principles which apply to an application for a permanent stay of proceedings (which are canvassed below) such a remedy was warranted in the particular circumstances of the applicant. In my view, it was no part of the answer to that question to observe, as her Honour effectively did at AB 9-10, that aspects of the procedure under s.19 might be regarded as unfair in any event. The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.
In addition, the overall effect of her Honour's reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.
Further in my view, her Honour's reference to declining to "exercise jurisdiction because the relevant statute might occasion some unfairness" was inapposite, as was the associated reference to the decision in Grills v R; PJE v R (1996) 70 ALJR 905. Her Honour was not asked to decline to exercise her jurisdiction on the basis that the Act operated unfairly. She was asked to find that the circumstances of this case were such that its continuation should be regarded as being unfairly and unjustifiably oppressive. The two propositions are quite different. To categorise the application as her Honour apparently did was, with respect, to misunderstand the basis upon which it was brought.
For all of these reasons I am satisfied that error has been established.
Should this Court grant a permanent stay of proceedings?
The relevant principles
The evidence which was before the primary judge is also before this Court. As error has been found, it is open to this Court to exercise its own discretion and determine, having regard to the applicable principles, whether the application should succeed.
In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales (1989) 168 CLR 23 at 34 per Mason CJ.
In R v Edwards (2009) 83 ALJR 717 the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner (1993) 177 CLR 378 in the following terms (at 720):
".... whether, in all of the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process".
The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases; Barton per Wilson J at 475; Jago per Mason CJ at 582.
The onus remains upon an applicant for an order for a stay to establish a factual basis for the order which is sought: Boulos v R [2008] NSWCCA 119 at [46]. That onus is necessarily a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9].
The application of the principles to the present case
The offending conduct is alleged to have occurred more than 40 years ago. In the circumstances of the present case that is a factor which gives rise to a number of matters of significance. In my view, a combination of those matters gives rise to unacceptable injustice and unfairness, warranting a permanent stay of the proceedings.
I have already made reference (at [31]-[32]) to those parts of the affidavit of Mr Williams in which he deals with the absence of available documentary evidence. It is open to infer that the documents sought were not produced because of the passing of time. I am unable to agree with the primary judge's conclusion that the proposition that relevant evidence was not available was "somewhat speculative" (AB10). The evidence which was before her Honour was to the contrary.
In this regard it should also be noted that before this Court the applicant read, without objection from the Crown, a further affidavit of Mr Williams, annexed to which was a statement from N which was provided to the police in May of this year. That statement, which I infer was not before her Honour, confirms the applicant's instructions regarding his residence at the material time. In one sense, it might be said that N's statement goes some way towards ameliorating the effect of the absence of the material which was sought under subpoena. At the same time, it tends to corroborate the applicant's instructions in one particular respect. In doing so, it undermines a material aspect of the Crown case.
The period of time which has elapsed since the alleged offending occurred also impacts in another particular way. I have noted (at [21]) that the applicant was convicted in 1995 for not dissimilar offending as that which is alleged by the present complainant. There is evidence (AB 86) that those proceedings were the subject of significant media reporting, which included television news coverage depicting the applicant, and articles and photographs in the print media. A second statement annexed to the most recent affidavit of Mr Williams provides further support for the conclusion that the media coverage was widespread. There is also evidence that despite extensive attempts, little evidence of such reporting has been able to be recovered (AB 86).
The complainant gave evidence in the committal proceedings (AB 27 L25-32) that he did not become aware of the applicant's prior record until after he had recalled the alleged offending. Those representing the applicant would necessarily wish to explore that issue with the complainant in light of what is said to have been the previous widespread media publicity surrounding the applicant's earlier conviction. The inability to obtain the relevant material completely prevents that issue from being pursued. Once again, the unfairness which flows from the absence of that material is not speculative, it is the fact.
It is also relevant that the applicant is now approaching 77 years of age and is beset with a number of health issues. The Crown relied on the decision in Subramaniam (supra) in support of the proposition that the fact that the applicant suffered from mental health issues was of limited significance in light of the fact that the proceedings are in the nature of a special hearing under s. 19. However as I have set out at [33] above, the health issues raised by the applicant go substantially beyond matters bearing on his mental health.
It must also be emphasised that this is not just a case in which there has been a significant delay in the allegations being made. To view it in that way would be to oversimplify it. Rather, and quite apart from the fact of the delay, it is a case in which the process of recollection has been questioned, and in which the recollection itself has been categorised, without equivocation, as unreliable.
I have set out (at [34]-[43]) those parts of the evidence of Dr Roberts which go to this issue. There is no basis on which to conclude that the evidence of Dr Roberts should be rejected. The Crown did not adduce evidence of any contrary opinion and, for the reasons I have already set out, there was no effective challenge mounted in the cross-examination of Dr Roberts before her Honour.
Further, leaving aside the opinions themselves, Dr Roberts expressed the view (AB 34 L48-49) that "independent corroboration is the gold standard". He also said (AB 39 L47-48):
"... the bottom line is if there's independent corroboration that puts a different perspective on the situation".
In the present case there is no independent corroboration of the complainant's allegations. Whilst that, of itself, may not be unusual in matters of this nature, the absence of independent corroboration assumes considerably greater significance in view of the process by which the allegations emerged. The only independent evidence before this Court which bears upon the complainant's allegations is the statement of N. That statement does not corroborate the complainant, but in fact goes some towards way to exculpating the applicant.
Finally, I should note that reference was made in the proceedings before her Honour, and before this Court, to the fact that the Crown would seek to rely upon the evidence which led to the applicant's previous convictions in 1995 (AB 301-305) as tendency evidence under s. 97 of the Evidence Act 1995. The Court has not been provided with a copy of any tendency notice served but in general terms, the evidence in question concerns assaults on schoolboys between 1969 and 1975.
Section 97 of the Evidence Act proceeds on the basis of inferential reasoning that people behave consistently in similar situations (see FB v R [2011] NSWCCA 217 at [23]; R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492). For the evidence to be admissible, it would be incumbent upon the Crown to establish that it had significant probative value. Whilst striking similarity is not required, it remains the case that generally speaking, the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value in the sense referred to in s 97 (see BP v R;R v BP [2010] NSWCCA 303 at [108] per Hodgson JA; see also the discussion by Basten JA in Saoud v R [2014] NSWCCA 136 at [39]-[44]).
The Crown conceded before this Court that the relevant similarity was limited to the broad nature of the offending and nothing else. Having read the material, and in light of the Crown's concession, I have considerable doubt as to its admissibility as tendency evidence. However, it is not necessary to resolve that question for the purposes of determining the present application. The fundamental unreliability of the complainant's evidence, along with the various other matters to which I have referred, satisfy me that the test for the grant of a permanent stay of proceedings has been met.
ORDERS
I propose the following orders:
(1) Leave to appeal is granted;
(2) The appeal is allowed;
(3) The decision of Judge Huggett of 12 May 2014 dismissing the application for a stay of proceedings is quashed;
(4) The proceedings on the Indictment presented against the applicant in the District Court of NSW on 5 May 2014 are permanently stayed.
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Decision last updated: 29 August 2014
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