AGOSTON v R

R v Hakim (1989) 41 A Crim R 372 CASES CITED : R v Sexton (2000) 77 SASR 405 R v WRC (2003) 59 NSWLR 273 Subramaniam v The Queen (2004) 211 ALR 1

PARTIES: AGOSTON, Peter Gabriel Commonwealth Director of Public Prosecutions

COUNSEL: P Hastings QC / M Buscombe (Appellant) D Staehli SC / P McDonald (Crown)

SOLICITORS: MDA Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL 2007/15098

JAMES J HOEBEN J HALL J

FRIDAY 18 JULY 2008 AGOSTON, Peter Gabriel v R Judgment 1 JAMES J: Peter Gabriel Agoston applied for leave to appeal pursuant to s 5F of the Criminal Appeal Act against an interlocutory judgment of his Honour Judge Freeman of the District Court, refusing to grant a permanent stay of criminal proceedings against the applicant for five alleged offences of defrauding the Commonwealth under s 29D (since repealed) of the Crimes Act (Cth) ("the Act" or "the Commonwealth Act"). No certificate within s 5F(3)(a) of the Criminal Appeal Act was given by the primary judge and, accordingly, an appeal lies to this Court, only if this Court gives leave to appeal. However, no submission was made on behalf of the Crown that leave to appeal should not be granted.

Background to the charges 2 The applicant, who is now 81 years old, practiced for many years as an accountant. It is alleged by the prosecution that between July 1996 and April 2001 the applicant defrauded the Commonwealth by preparing and lodging income tax returns for clients who were individuals or partnerships, which falsely overstated the amount of the expenditure by the individuals or partnerships in the production of a number of Australian films. 3 Between 2000 and 2003 an auditing of the clients' income tax returns were conducted by the Australian Taxation Office. In June 2006 criminal proceedings were commenced against the applicant by the issuing of court attendance notices and in July 2006 these court attendance notices were served on the applicant. 4 No committal hearing in respect of the charges has yet been held. The question of the applicant's fitness to be tried for the alleged offences was raised in the Local Court and, in accordance with s 20B(1) in Div 6 of Pt 1B of the Act, the Magistrate referred the proceedings to the District Court. 5 On 7 February 2008 a notice of motion was filed in the District Court on behalf of the applicant, seeking an order that the prosecution of the applicant on the five charges be permanently stayed.

The judgment of the primary judge 6 The hearing of the applicant's application for a permanent stay took place on 18 February 2008 and on that day his Honour gave an immediate judgment. In his judgment his Honour refused the application for a stay but found that the applicant was unfit to be tried. 7 In his judgment his Honour said"- "The major grounds of today's application are the applicant's alleged unfitness to plead because of cognitive difficulties, together with his age and his physical frailty, together with his history of serious physical conditions and (the) delay between 2003 when the auditing was complete and the filing of the charges in June 2006."

His Honour considered the factor of delay and concluded that, whether by itself or in combination with other factors, it was not material. 8 In his judgment his Honour said that "easily the largest plank upon which the application rests is the allegation that the applicant is himself unfit to plead" (that is, to be tried). His Honour then reviewed some of the medical evidence which has been adduced on the hearing of the application. 9 Dr Nielssen, psychiatrist, who had been treating the applicant since 2002, said in a report that an original diagnosis of depression had been overtaken by the development of dementia. This diagnosis was supported by brain scans showing shrinkage of the cerebellum and by neuropsychological testing, which demonstrated a deteriorating cognitive function, consistent with a diagnosis of Alzheimer's disease. Dr Nielssen considered that the applicant would be unfit to be tried, in that he would be unable to follow the proceedings in a meaningful way. 10 Dr Batchelor, a neuropsychologist, who had conducted some of the testing of the applicant on which Dr Nielssen had relied, expressed the opinion that the results of testing provided evidence of "specific cognitive deficits that characterised patients with progressive neurological disorder (dementia)". 11 Dr Pulman, a neuropsychologist, who assessed the applicant on behalf of the Crown, concluded:- "The implications of Mr Agoston's current level of cognitive functioning indicate that he is unlikely to be able to follow legal proceedings in a meaningful way or provide meaningful instructions to his solicitors. He is also unlikely to be able to give consistent evidence on his own behalf or withstand cross-examination on complex matters. Furthermore, as dementia is irreversible and represents a progressive deterioration in cognitive functioning, Mr Agoston is likely to remain unfit for trial." 12 Dr Milder, a neurologist, listed the findings he had made on examination of the applicant and concluded that the findings suggested Alzheimer's type dementia. 13 Dr Westmore, a psychiatrist, expressed the opinion that the applicant was not fit to be tried. 14 Dr Allnutt, a psychiatrist retained by the Crown, examined the applicant in August 2007 and concluded that "the issue of fitness at this point in this case is finely balanced". Dr Allnutt accepted that the applicant was unlikely to be able to properly provide instructions to his legal advisers or follow the course of a trial or give evidence in a trial. Judge Freeman observed in his judgment that in the six months which had elapsed since Dr Allnutt had examined the applicant it was likely that the applicant's condition had deteriorated. 15 In his judgment the primary judge then proceed to consider whether, if it was accepted that the applicant was unfit to be tried, the application for a permanent stay of the criminal proceedings against the applicant should be granted. 16 His Honour noted that counsel for the applicant accepted that a permanent stay of criminal proceedings should be granted only in an exceptional case. However, his Honour recorded, it was submitted by counsel for the applicant that "a combination of his client's unfitness to plead, if it be accepted, and those other matters (to) which I have referred, frailty, prostate cancer, twice the subject of operative intervention and so on" was sufficient to make the applicant's case an exceptional case. The primary judge rejected this submission by counsel for the applicant. In rejecting the submission his Honour referred to the cases of Subramaniam v The Queen (2004) 211 ALR 1 (High Court of Australia); R v WRC (2003) 59 NSWLR 273 (New South Wales Court of Criminal Appeal); and R v Sexton (2000) 77 SASR 405 (South Australian Court of Criminal Appeal). 17 In his judgment the primary judge said that in Subramaniam it had been held that "where an alternative exists, namely the special proceedings which are available when someone is found unfit to plead, then the legislative intent, which is that those proposed procedures be followed, rather than the process be stayed, should be given effect (to)". The "alternative" procedures his Honour was referring to were those stated in the provisions of Pt 1B Div 6 of the Act. 18 The primary judge quoted part of par (20) of the judgment of the High Court in Subramaniam, where the Court said:- "One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done." 19 The "Act" referred to in this paragraph of the judgment of the High Court in Subramaniam was, not the Commonwealth Act, but the Mental Health (Criminal Procedure) Act (NSW) and "the procedures" referred to were the procedures, not in the Commonwealth Act, but in the Mental Health (Criminal Procedure) Act (NSW) (which I will refer to as "the State Act"). 20 Nevertheless, notwithstanding that the High Court was referring to a different Act, his Honour considered that what had been said by the High Court in par 28 of its judgment in Subramaniam could be applied to the present case, there being no difference in principle. In support of this view, his Honour cited Sexton. In accordance with par 28 of the judgment of the High Court in Subramaniam, the applicant should be given the opportunity of having the criminal proceedings against him terminated in his favour and, although there was no personal victim of the applicant's alleged offences, the community at large should be given the opportunity of seeing that a form of justice had been done. His Honour concluded that it would not be appropriate to grant a stay of the criminal proceedings against the applicant. 21 In his judgment his Honour continued:- "Granting this applicant a stay of proceedings would be the equivalent of granting him a certificate of immunity from prosecution, which I should not do where there exists a process whereby he may be cleared of the allegations or at least where the outcome of the community's will can be advanced by seeing the evidence against him arrayed in open court, although, admittedly, in an incomplete and imperfect way. This persuades me that it would be inappropriate to grant a stay. It is not outside common humanity to require that the proceedings against him continue." 22 Towards the end of his judgment the primary judge returned to the question of the applicant's fitness to be tried. His Honour said:- "I should say one thing more since it is relevant to a consideration of his fitness. The consensus of opinion is that a long trial, with the requirement that he receive, consider and give instructions on detailed evidence spanning some weeks would be outside his capacity to cope. I have not been given an estimate of the trial, but its dimensions - or the dimensions of the brief are such as to make me think that it would in fact last for a number of weeks. The substance of allegations can be stated, I think fairly succinctly. It is said, as I understand it, that Mr Agoston recruited some clients of his long standing accounting practice into a scheme whereby they claimed deductions for greater than the amounts which they actually invested in the making of the films… Thus in round figures, fifteen or so of them, including Mr Agoston himself, put up about $600,000. There then ensued a round robin whereby company A drew a cheque for about $800,000 in one case and after it had passed through other accounts the same amount was deposited back into that company account. Of this entire notional sum each contributor was gifted or loaned, depending on the instant scheme, an amount so that that sum together with their actual contribution could be claimed as expenditure on the film. That is very straightforward, but the relationship between this applicant and Mr Hay, who produced and directed the films and certified the expenditure, would require, I daresay, some detailed exploration. I am not dissuaded, or rather I am persuaded, on the balance of probabilities, that this applicant lacks the understanding or would lack the capacity to receive that information, to process it as that evidence is given against him, to instruct those who represent him to delve into those dealings to unpick the evidence given about what advice was on hand and precisely what steps were taken and so on in these events now between six and ten years ago. Therefore, whilst I refuse the application for a stay I find myself satisfied that the applicant is unfit to plead."

Commonwealth Crimes Act Pt 1B Div 6 23 To fully comprehend the primary judge's judgment and some of the submissions made on this application, it is necessary to set out a number of the provisions of Div 6 of Pt 1B of the Commonwealth Crimes Act, which is headed "unfitness to be tried". Division 6 - Unfitness to be tried 20B Consequences of preliminary finding that person unfit to be tried

(1) Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.

(3) Where a court: (a) to which proceedings have been referred under subsection (1);

finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

(6) For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence. (7) In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established: (a) the person may give evidence or make an unsworn statement; and (b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and (c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.

20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months

(1) Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody. (2) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to: (a) the character, antecedents, age, health or mental condition of the person; or (b) the extent (if any) to which the offence is of a trivial nature; or (c) the extent (if any) to which the offence was committed under extenuating circumstances; that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.

(4) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried."

24 Section 20BC contains various provisions which apply if a person is found by a court to be likely to be fit to be tried within 12 months. 20BC Persons found by a court not to be likely to be fit within 12 months

(1) Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine: (a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and (b) if so - whether the person objects to being detained in a hospital.

(2) Where a court has made a determination under subsection (1), the court must: (a) if the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital - order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or (b) otherwise - order that the person be detained in a place other than a hospital, including a prison; for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.

(5) Despite subsection (2), the court may, if in the court's opinion it is more appropriate to do so than to make an order under subsection (2), order the person's release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years."

Mental Health (Criminal Procedure) Act Pt 2 25 To fully comprehend the primary judge's judgment and some of the submissions made on this application, it is also necessary to refer to a number of the provisions in Pt 2 of the Mental Health (Criminal Procedure) Act, that is the State Act. 26 Under s 10 of the State Act if a court determines that an inquiry should be conducted or the question of a person's fitness to be tried for an offence is raised, the court must conduct an inquiry in order to determine whether the person is unfit to be tried for the offence charged. 27 Under s 11 of the State Act, as in force from 1 January 2006, the question of a person's unfitness to be tried for an offence is to be determined by a judge alone. Previously, under the former s 11 and s 11A of the State Act, the question of a person's unfitness to be tried was to be determined by a jury, unless the person elected to have the question tried by a judge alone. 28 Under s 14 of the State Act if, following an inquiry, an accused person is found unfit to be tried for an offence, the criminal proceedings against the accused person are not to be continued and the accused person is to be referred to the Mental Health Tribunal. 29 Under s 16 of the State Act, if a person has been referred to the Tribunal, the Tribunal must determine whether the person will during the period of 12 months after the finding of unfitness become fit to be tried for the offence. The Tribunal must notify the court which referred the person of its determination. 30 Section 19 of the State Act provides in part as follows:- "(1) If the Court receives a notification of a determination from the Tribunal under section 16 (3) …. that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court: (a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and (b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.

(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged." 31 Section 21 of the State Act provides:- "21 Nature and conduct of special hearing

(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. (2) At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. (3) At a special hearing: (a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and (b) the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and (c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and (d) without limiting the generality of subsection (1), the accused person is entitled to give evidence. (4) At the commencement of a special hearing for which a jury has been constituted, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts." 32 Under s 21A, as in force from 1 January 2006, at a special hearing the question of whether an accused person has committed the offence is to be determined by a judge alone at the special hearing, unless an election to have the special hearing held with a jury is made. Previously, under the former s 21 and s 21A of the State Act, a special hearing was held with a jury, unless the accused person elected to have a special hearing by a judge alone. 33 Section 22(1) of the State Act provides:- "(1) The verdicts available to the jury or the Court at a special hearing include the following: (a) not guilty of the offence charged, (b) not guilty on the ground of mental illness, (c) that on the limited evidence available, the accused person committed the offence charged, (d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged." 34 Section 23(1) of the State Act provides:- "(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court: (a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and (b) where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term , in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence."

Cases 35 In the primary judge's judgment and in the submissions of both counsel for the applicant and counsel for the Crown references were made to the cases of Subramaniam, WRC and Sexton. 36 In Subramaniam the appellant had been charged with two counts of perverting the course of justice. After a first trial, in which the jury had been unable to agree, the appellant's mental health deteriorated. A judge made a determination that an inquiry be conducted (s 10 of the State Act). At the inquiry the appellant was found unfit to be tried and was referred to the Mental Health Tribunal (s 14 of the State Act). The Tribunal determined that the appellant would not during the period of 12 months after the finding of unfitness become fit to be tried for the offence (s 16 of the State Act). A special hearing was directed to be held (s 19 of the State Act). At the special hearing an application was made on behalf of the appellant for a permanent stay of the criminal proceedings against her. This application was refused. The special hearing continued and at the conclusion of the special hearing the jury returned a verdict of guilty on one count and a verdict of not guilty on the other count (s 22 of the State Act). 37 An appeal was brought to the Court of Criminal Appeal against the refusal of a stay and against the conviction. Both appeals were dismissed. 38 On a further appeal to the High Court the appeal against the refusal of a stay was dismissed but the appeal against conviction was allowed, on the ground that the trial judge had failed to direct the jury at the special hearing in accordance with s 21(4) of the State Act. 39 Of importance to the present application is what the High Court said regarding the appeal against the refusal of a stay. The High Court said:- "[24] The principles governing stays : The principles relating to the grant of a stay are not disputed. The appellant does not in this court, nor has she previously, complained of unreasonable delay in the prosecution of her case. She relies solely on the fact of her deteriorating mental health, that it relevantly adversely affected her in two particular respects. First, it is submitted that her mental health prevented her from being able to give reliable testimony. Secondly, further prosecution of the proceedings could have resulted in a serious worsening of her current mental health. We observe at this point that no fresh evidence was sought to be tendered in the Court of Criminal Appeal to establish that the trial had in fact significantly worsened the appellant's condition.

[25] In Jago v District Court (NSW) Brennan J cautioned against too ready a disposition to grant stays: The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind.

[26] It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed. As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner , the inherent power of a superior court to stay proceedings on the ground 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".

[27] Fairness or unfairness has been said to defy "analytical definition" and to "involve an undesirably, but unavoidably, large content of essentially intuitive judgment". Deane J in Jago posed some examples of unfairness: default or impropriety on the part of the prosecution in pre-trial procedures, or the concealment of evidence from an accused person that may have assisted his or her defence. Others may include conviction on evidence truly not probative; compulsion upon an accused to incriminate himself or herself; the exaction of involuntary confessions or admissions; failure to hold committal proceedings; the absence of legal representation of an indigent person facing serious criminal proceedings; and, unreasonable delay.

[28] Stays in the context of the Act : One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a "limiting term" of imprisonment that would have to be served if the person had been tried in the normal way. 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 to construe and apply the Act otherwise than according to its tenor.

[29] No error has been shown : The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves.

[30] The appellant relied not only upon her current mental condition, but also upon the potential for its exacerbation by reason of the special hearing. This, it was said, would be so oppressive to her as to justify a permanent stay.

[31] A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it "would be out of accord with common humanity" to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed." 40 The High Court then considered the evidence in Subramaniam and concluded that it had not been shown that the trial judge had erred in the exercise of his discretion in refusing a stay. 41 In par 35 of its judgment the High Court said:- "The ground of appeal relating to the stay should therefore be rejected. This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides, although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave." 42 In WRC the Crown appealed pursuant to s 5F of the Criminal Appeal Act against an order by a District Court judge that the criminal proceedings against the respondent be permanently stayed. The principal judgment in WRC was given by Spigelman CJ, with whom the other members of the Court agreed. 43 In his judgment the Chief Justice referred to the decision of the Court of Criminal Appeal in R v Hakim (1989) 41 A Crim R 372, in which the Court of Criminal Appeal dismissed an appeal by the Crown against a decision by Lee J ordering a permanent stay of criminal proceedings on the grounds of the accused person's long history of ischemic heart disease. The test which Lee J applied, which was affirmed by the Court of Criminal appeal in Hakim, was that in the light of Hakim's medical condition it would "offend common humanity" to allow the charges to proceed. 44 In pars 55-60 of his judgment the Chief Justice said:- [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, for example, 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 R v Hakim . His Honour did say that the case before him was similar to R v Hakim , however, at the time that he expressed his relevant finding, he did so in the terms quoted above, that is, "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 21 [59]-[64]; 98 [294], 109 [332]; R v 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." 45 The Chief Justice concluded that a permanent stay should not have been ordered. The continuation of the proceedings would not be an abuse of process and would not be "an affront to common humanity". 46 In Sexton an accused person Sexton had been charged with a Commonwealth offence under the Customs Act. Sexton applied for a stay on the grounds of his ill health. 47 Two questions were reserved for the consideration of the South Australian Court of Criminal Appeal. The first of these questions was whether the application was to be determined in accordance with Pt 1B Div 6 of the Commonwealth Act. This question was answered "No" by the Court of Criminal Appeal. The Court of Criminal Appeal held that Pt 1B Div 6 of the Commonwealth Act sets out the consequences of a finding that a person is unfit to be tried but does not prescribe the procedure for determining that question and contains nothing to abrogate the inherent jurisdiction of a court to grant a permanent stay of proceedings for an offence against Commonwealth law. 48 There were four grounds of appeal against the refusal of the primary judge to grant a permanent stay of criminal proceedings against the applicant. These grounds of appeal were:

Ground 1: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant, by determining that the existence of Part 1B Division 6 of the Crimes Act 1914 (Cth) required that the application for the permanent stay be refused.

Ground 2: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant in that his Honour placed undue weight upon the existence of Part 1B Division 6 of the Crimes Act 1914 (Cth).

Ground 3: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant in that his Honour failed to give sufficient weight to the existence of the medical condition of the applicant, the applicant's age, the complexity of the charges brought against the applicant and the delay in the bringing of those charges.

Ground 4: The evidence before his Honour demonstrated that the applicant's case was an exceptional case justifying the grant of a permanent stay of proceedings. 49 In counsel for the applicant's written submissions grounds 1 and 2 were dealt with together and grounds 3 and 4 were dealt with together and it is convenient to adopt this method of dealing with the various grounds of appeal.

Ground 1: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant, by determining that the existence of Part 1B Division 6 of the Crimes Act 1914 (Cth) required that the application for the permanent stay be refused.

Ground 2: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant in that his Honour placed undue weight upon the existence of Part 1B Division 6 of the Crimes Act 1914 (Cth). 50 It was accepted by counsel for the applicant that the existence of Pt 1B Div 6 of the Act was a relevant matter to take into account in the exercise of the primary judge's discretion whether to grant a permanent stay of the criminal proceedings. However, it was submitted that the primary judge had erred in the exercise of his discretion by regarding the existence of Pt 1B Div 6 as requiring an exercise of his discretion so as to refuse a stay, without taking into account other matters which should have been regarded as relevant to the exercise of the discretion or by giving excessive weight to the existence of Pt 1B Div 6, as compared with the weight given to other relevant matters. 51 In support of these submissions counsel for the applicant pointed particularly to two parts of the primary judge's judgment to which I have already referred earlier in this judgment, namely:-

1. The part of his Honour's judgment where his Honour said that in Subramaniam the High Court held "where an alternative exists, namely the special proceedings which are available when someone is found unfit to plead, then the legislative intent which is that those proceedings be followed rather than the process be stayed, should be given effect (to)".
2. The part of his Honour's judgment where his Honour said that he should not grant a stay, which would be equivalent to granting a certificate of immunity for the applicant, "where there exists a process whereby he may be cleared of the allegations or at least … the outcome of the community's will can be advanced by seeing the evidence against him arrayed in open court, although, admittedly in an incomplete and imperfect way". 52 With regard to Subramaniam, it was submitted by counsel for the applicant that the relevant legislation in that case was Pt 2 of the State Act, that there were a number of differences between the statutory scheme in Pt 1B Div 6 of the Commonwealth Act and the statutory scheme in Pt 2 of the State Act and these differences were such as to render the reasoning of the High Court in Subramaniam inapplicable, or at least less applicable, in the present case. Even in Subramaniam the High Court in par 35 of its judgment had accepted that there might still be cases of mental infirmity where the granting of a stay would be required. 53 With regard to WRC, counsel for the applicant pointed out that in that case also the relevant legislation was Pt 2 of the State Act and counsel repeated the submission that there were a number of differences between Pt 1B Div 6 of the Commonwealth Act and Pt 2 of the State Act. Under Pt 2 of the State Act, as it then stood, a special hearing was to be held with a jury, unless the accused person made an election that the special hearing be by a judge alone. It was submitted that in pars 56 to 60 of his judgment in WRC and particularly pars 56 and 59 the Chief Justice had stressed that, not only was there a special set of procedures in Pt 2 of the State Act, there was provision for a different decision-maker from a judge, in that, unless there was an election, a special hearing was to be held with a jury. In granting a stay the primary judge in WRC had "arrogated to a judge" the very function which Parliament had indicated should be performed by a jury. Under the scheme in Pt 1B Div 6 of the Commonwealth Act, on the other hand, all decisions are to be made by a judge. 54 It was submitted by counsel for the applicant that the primary judge had erred in the exercise of his discretion by not taking into account, or by giving insufficient weight to, various matters which would make it "unfair" to the applicant for the criminal proceedings against him to continue, including his medical condition both mental and physical, the complexity of the prosecution case and the delay which had occurred. 55 It was disputed by counsel for the Crown that the primary judge had regarded the existence of Pt 1B Div 6 as of itself requiring the refusal of the application for a stay or that the primary judge had given excessive weight to the existence of Pt 1B Div 6. The primary judge, it was submitted, had recognised that he had a discretion and had referred in his judgment to other matters apart from the existence of Pt 1B Div 6. 56 It was submitted by counsel for the Crown that, while there were admittedly differences between the statutory schemes under the Commonwealth Act and the State Act, the latter being the scheme considered in both Subramaniam and WRC, the two schemes were broadly similar and the same general argument against the granting of a stay was available, that the applicant in his application for a stay was relying on the very matter, namely the applicant's mental infirmity, which brought into operation the special statutory provisions applying where a person by reason of mental infirmity is unfit to be tried. 57 With regard to WRC, it was submitted by the Crown that, on a fair reading of the Chief Justice's judgment, the important consideration for the Chief Justice was the existence of "an alternative mechanism" ("a specific statutory procedure"), rather than that at some stage in that alternative mechanism there would be a different decision-maker from a judge. 58 It was submitted on behalf of the Crown that the primary judge had taken into account all of the matters sought to be relied on by counsel for the applicant as making a continuation of the criminal proceedings unfair to the applicant. 59 Counsel for the Crown relied on the general principles governing applications for a permanent stay of criminal proceedings as set out in Subramaniam.

Decision 60 I do not consider that I should find that the primary judge regarded the existence of Pt 1B Div 6 as of itself requiring an exercise of his discretion so as to refuse a stay, without any need to take into account other matters which should have been regarded as relevant to the exercise of his discretion. 61 Early in his judgment the primary judge stated the major grounds of the application as being the applicant's unfitness to be tried, his age, his physical frailty, his history of serious physical medical conditions and the delay which had occurred particularly between the completion of the auditing by the Australian Taxation Office and the commencement of the criminal proceedings. Later in his judgment the primary judge referred to counsel for the applicant's argument that the combination of unfitness to be tried and "those other matters which I have referred (to), such as physical ill health", was such that the granting of a stay was required "to ensure fairness". 62 The primary judge, adopting the test first stated by Lee J in Hakim, concluded that it was "not outside common humanity" to require that the criminal proceedings against the applicant continue. It would have been irrelevant for his Honour to apply such a test, if the only matter his Honour was taking into account was the existence of Pt 1B Div 6. 63 Nor do I consider that his Honour erred in placing excessive weight on the existence of Pt 1B Div 6. It will not often be the case that an exercise of a discretion by a primary judge can be successfully challenged on appeal, on the basis that the primary judge gave excessive weight to a matter which is conceded to have been relevant. In any event, it could not be disputed in the present case that "the largest plank" on which the application for a stay rested was that the applicant was unfit to be tried. 64 There are, undoubtedly, differences between the statutory scheme in Pt 1B Div 6 of the Commonwealth Act and Pt 2 of the State Act, particularly as it stood when WRC and Subramaniam were decided. 65 Some of the differences between the Commonwealth Act and the State Act render less applicable to the present case some of the reasoning in the judgment of the High Court in Subramaniam on which the primary judge relied. 66 So far as the accused person is concerned, under the State Act a person found to be unfit to be tried is given the opportunity of being acquitted at a special hearing, which is to be conducted as nearly as possible as if it were a trial and at which the accused person is entitled to be acquitted unless his guilt is proved to the criminal standard of proof. On the other hand, under the Commonwealth Act a court merely determines whether there is a prima facie case against an accused person who has been found unfit to be tried, that is whether there is evidence that would provide sufficient grounds to put the person on trial. It is only if the court determines that a prima facie case has not been established that the charge against the accused person can be dismissed. 67 So far as victims are concerned, even accepting that in the present case it is appropriate to regard members of the public generally as victims of the applicant's alleged offences, the opportunity given to the victims to see that a form of justice has been done is a lesser opportunity under the Commonwealth Act. Under the Commonwealth Act there is no special hearing approximating to a trial and the period for which a person may be ordered to be detained is less analogous to a sentence than is a limiting term under the State Act. 68 However, although such differences between the two statutory schemes render less applicable to the present case reasoning of the kind contained in par 28 of the judgment in Subramaniam, they do not prevent that reasoning having some application and, in my opinion, the primary judge was entitled to have some regard to such reasoning. 69 Likewise, some of the differences between the Commonwealth Act and the State Act, particularly as it stood at the time of WRC, render less applicable, but do not entirely exclude, some of the reasoning in pars 56 to 60 of the Chief Justice's judgment in WRC. 70 In my opinion, the Chief Justice in these parts of his judgment relied both on the existence of "an alternative mechanism" or "special procedure" and on the fact that under that mechanism or procedure a special hearing would, unless there was an election by an accused person, be held before a jury, that is a different decision-maker from a judge. I would not accept the Crown's submission that the fact of a different decision maker was merely "a side issue". Under the Commonwealth Act all decisions, including whether a prima facie case has been established, are made by a court, that is a judge. Accordingly, the second matter on which the Chief Justice relied in WRC is not present in the instant case. However, the first matter, the existence of a special statutory set of procedures, is present and an argument that the very matter on which the applicant principally relies in his application for a stay, that is the applicant's mental unfitness, is the same matter as makes applicable Pt 1B Div 6 of the Commonwealth Act, is still available to the Crown. 71 I would reject the first two grounds of appeal.

Ground 3: His Honour erred in declining to grant a permanent stay of the criminal proceedings brought against the applicant in that his Honour failed to give sufficient weight to the existence of the medical condition of the applicant, the applicant's age, the complexity of the charges brought against the applicant and the delay in the bringing of those charges.

Ground 4: The evidence before his Honour demonstrated that the applicant's case was an exceptional case justifying the grant of a permanent stay of proceedings. 72 All of the matters referred to in the third ground of appeal were expressly referred to in the primary judge's judgment and, I would infer, were taken into account by his Honour. His Honour, as I have already indicated, examined the expert psychiatric and psychological evidence about the applicant at some length. His Honour referred in two parts of his judgment to the physical ill health of the applicant. There was no occasion for his Honour to discuss any medical evidence about the applicant's physical ill health, because there was no such evidence, apart from incidental evidence in the reports of the psychiatrists or psychologists. In his judgment the primary judge referred to the applicant's age. In the judgment the primary judge considered the alleged delay at some length and concluded that such delay as had occurred, either alone or in combination with other matters did not require "any real consideration as part of the overall circumstances". 73 I have already quoted the part of the primary judge's judgment in which his Honour considered the alleged complexity of the proceedings. Counsel for the applicant referred in his submissions to correspondence between the solicitors for the applicant and the Director of Public Prosecutions seeking further particulars or clarification of the charges. If there is any remaining lack of particularity or clarity in the charges, it can be pursued by the solicitors for the applicant. 74 In my opinion, his Honour did not err in holding that the present case was not such an exceptional case as to require or warrant granting a permanent stay of the criminal proceedings against the applicant. 75 I would reject the third and fourth grounds of appeal and, as I have now rejected all of the grounds of appeal, I would, although granting leave to appeal, dismiss the appeal. 76 HOEBEN J: I agree with James J and the order which he proposes. 77 HALL J: I agree with James J. **********

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