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."