Arrivoli v R

THE APPLICANT'S GROUNDS

1. I turn then to the applicant's notice of motion. The grounds particularised in the applicant's notice of motion are as follows: 1. That the continuation of the proceedings by way of special hearing involve an unacceptable injustice or unfairness to the applicant. The allegations date back to 1973/1974, some 42 to 43 years ago, and as a consequence the applicant will be severely prejudiced in his defence by the extraordinary delay. 2. The applicant suffers from extremely poor physical and psychiatric 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. The circumstances involved in this prosecution are so unfairly and unjustifiably oppressive as to constitute an abuse of process.
2. I will simply note at this stage the evidence on the stay application, and will discuss it in greater detail shortly.
3. The applicant read an affidavit of his solicitor sworn 3 December 2016 in support of the notice of motion. The solicitor was not required for cross‑examination by the Crown. There were numerous documents exhibited to that affidavit, some of which I will refer to in detail later in this judgment. The applicant also tendered certain other medical reports in support of his application, some of which came into existence after the applicant was taken to hospital with chest pains on 5 December 2016, which was the day fixed for the commencement of the special hearing.
4. Oral evidence was also called from Dr Albert Roberts, a consultant forensic psychiatrist, whose earlier reports were exhibited to the solicitor's affidavit.
5. The Crown called evidence from the detective in charge of the case in relation to the delay in and the course of the investigation. The Crown did not seek to have the applicant further examined by a medical practitioner.

A RELEVANT CHRONOLOGY

1. I turn then to a relevant chronology. A chronology of relevant events in both the investigation and prosecution derived from the evidence and the Court file is as follows: 1. 1973/74: the years in which the offences are alleged to have been committed. 2. 24 August 2006: the complainant makes a complaint to the police. The complainant indicated that he did not wish to take the matter any further. The evidence is that no actual police investigation occurred at that time. 3. 2008: the Catholic Church conducts an inquiry as part of its "Towards Healing" process. The complainant and the applicant were interviewed. No admissions as to wrongdoing were made by the applicant. 4. March 2014: the police file was referred to the detective in charge as a consequence of the matter being referred to the New South Wales police by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). 5. 24 November 2014: the applicant was charged with the allegations by way of Court attendance notices. 6. 11 December 2015: the applicant was committed for trial. 7. 19 February 2016: the applicant was arraigned and the proceedings were listed for a fitness hearing. 8. 25 February 2016: the fitness hearing proceeded before my brother judge, Judge Hanley, and his Honour found that the applicant was unfit for trial. 9. 14 June 2016: the Mental Health Review Tribunal made a determination that the applicant would not become fit for trial within 12 months. 10. 26 July 2016: a direction was made by the Director of Public Prosecutions that the matter was to proceed to a special hearing. 11. 12 August 2016: 5 December 2016 was fixed as the date for the commencement of the special hearing. 12. 2 December 2016: the applicant's notice of motion seeking a stay was filed with the Court. 13. 5 December 2016: the applicant was taken to Concord Hospital with chest pains and later discharged.

THE PARTIES' SUBMISSIONS

1. I turn then to the applicant's submissions. The solicitor for the applicant in the written submissions submitted that, "There are a number of overlapping features which gives rise to an unacceptable risk and unfairness such that the exceptional remedy of a stay of the hearing ought to be granted".
2. That general submission was repeated and stressed during the oral submissions that were made. The written submissions referred to the delay both in terms of the delay in the sense that the allegations are between 42 and 43 years old, but also to the delay in the institution of proceedings, given that the complainant gave his statement to the police in 2006. Those submissions highlight the fact that the police appear to have done nothing in terms of any investigation between when the complainant made his statement and the referral of the matter by the Royal Commission in 2014. There is no evidence of any investigation of the complainant's allegations between 2006 and the referral by the Royal Commission, apart from the taking of the complainant's statement.
3. The applicant submitted that in the period of 40 years since the alleged offences, a number of potential witnesses had died and others had had their memories fade. It was submitted that the applicant's ability to defend the allegations had, in effect, been destroyed by the passage of time. It was further submitted that a number of potential witnesses whom, as former altar boys, should have been spoken to by police and witness statements obtained. The applicant specifically mentions as a potential witness a Father McNeal who is deceased and who was a relieving priest at St Monica's Church, Richmond, at the relevant time.
4. While the applicant relied upon there being overlapping features of his case which supported the granting of a permanent stay of the special hearing, the primary thrust of the applicant's argument was that the medical evidence before me was such that; "it would be out of accord with common humanity" to allow the special hearing to proceed. In that regard, the applicant specifically called in aid the decisions in R v Hakim (1989) 41 A Crim R 372, R v WRC [2003] NSWCCA 394 and Subramaniam v R (2004) 211 ALR 1.
5. I turn then to the Crown's submissions. The Crown submitted that the fact that there had been a 40-year delay in the making of the complainant's complaint was not unusual in cases of allegations of historical child abuse. Absent evidence as to real prejudice caused by the delay, a permanent stay was not justified by the delay. The Crown submitted that when regard was had to the content of the applicant's interviews with Catholic Church officials in 2008 and 2009, the issue in the special hearing was a narrow one, in that the applicant had accepted that the complainant had on occasion stayed overnight in the presbytery.
6. The Crown submitted that the failure to interview altar boys and a teacher referred to in the Church's investigation was not a matter of significance, given the admission by the applicant in his interview with Church officials that the complainant had stayed overnight in the presbytery on occasion. The Crown submitted that as the special hearing was to be heard by a judge alone there was a reduced risk of unfair prejudice by reason of the delay.
7. The Crown further submitted that the case was not one of such extreme delay that would result in the administration of justice being brought into disrepute.
8. In terms of the medical evidence, the Crown argument accepted that on the day that the special hearing was to commence, 5 December 2016, the applicant experienced chest pain and was admitted to hospital. The Crown accepted that the medical evidence established that the applicant presented to the hospital with elevated blood pressure and increased heart rate, and that because of the applicant's advanced age he was at risk of a coronary or other vascular event.
9. The Crown submitted that steps could be taken so that the risk of such an event could be reduced, such as not requiring the applicant to sit in the dock during the hearing and sitting for reduced hearing days in terms of time. The Crown submitted that the medical evidence did not establish that to allow the special hearing to continue it would be out of accord with common humanity or carry a grave risk of exacerbating the applicant's current condition.
10. The Crown submitted that it was necessary to give proper weight to the complainant's right to be heard and the public interest in the special hearing. The Crown relied upon the serious nature of the allegations and the high level of public interest in such allegations involving members of the clergy and resulting out of investigations by the Royal Commission.

THE MEDICAL EVIDENCE

1. As the primary thrust of the applicant's argument rested on the evidence of the applicant's mental and physical health, I propose to consider that evidence first. The medical evidence that is before me essentially covers the period December 2014 to December 2016. In December 2014 an MRI and ultrasound of the applicant revealed moderate atrophy in the brain, including the temporal lobes, and a narrowing of the carotid artery. On 19 December 2014 his general practitioner, Dr Gummadi, stated that the applicant suffered from hypertension, ischemic heart disease, asthma, glaucoma, chronic renal failure and osteoarthritis in his knees.
2. On 25 March 2015, when 92 years of age, the applicant was examined and assessed by Mr D Cipriani, a clinical psychologist, over a five-hour period. It is implicit from Mr Cipriani's report dated 25 March 2015 that he had available to him the MRI and the ultrasound performed in late 2014. Mr Cipriani's conclusions were stated as follows: "Father Arrivoli has a number of medical conditions which are associated with cognitive impairment. The documented moderate cerebral atrophy, and in particular the medial temporal lobe atrophy, most likely due to cerebrovascular disease, have resulted in severe memory impairment and some impairment of executive functions, reduced reading speed and mathematical ability and reduced visuospatial abilities. Visual and verbal memory are generally impaired and are affecting activities of daily living. Recall of past events seems somewhat unreliable".
3. Mr Cipriani considered that the applicant was likely to suffer further cognitive decline due to cerebrovascular disease, and would require increasing levels of care and supervision in the future.
4. The applicant was first seen by Dr Roberts, a consultant forensic psychiatrist, on 24 February 2015. Dr Roberts' first report is dated 24 March 2015. Dr Roberts found few symptoms of an acute stress disorder. Dr Roberts had available to him the MRI and ultrasound I referred to earlier. He recorded that the MRI report was consistent with there being mild to moderate atrophy changes in the brain. He also recorded that the ultrasound showed a near occlusion of the internal carotid artery. In his first report Dr Roberts opined that the applicant would experience deficits in recollection that would be over and above the difficulties in recollection, having regard to the effluxion of time, due to the atrophic changes in his brain.
5. The applicant was first seen by Dr Olav Nielssen, a psychiatrist, on 18 May 2015. Dr Nielssen had available to him the MRI and ultrasound, the report of the applicant's general practitioner and the report of Mr Cipriani. At the time of his presentation to Dr Nielssen, the applicant walked with the aid of a walking stick, had a fine tremor and required assistance to rise from a chair. Dr Nielssen diagnosed that the applicant was suffering from dementia and an anxiety disorder and considered that he was unfit for trial. Dr Nielssen considered that the presumed aetiology of the applicant's dementia was cerebrovascular disease. Dr Nielssen considered that the prognosis for the applicant was one of steady decline, probably within a relatively short time.
6. The Crown had the applicant seen by Dr Anthony Samuels, a consultant psychiatrist, on 4 September 2015 and Dr Samuels' report is before me. Dr Samuels considered that the applicant looked younger than his age, walked with a stick, but was quite mobile. The doctor recorded that the applicant could get in and out of a chair without assistance. Dr Samuels, in view of the earlier testing of the applicant, performed a brief cognitive examination. He recorded the applicant as performing "reasonably well". Dr Samuels agreed that the applicant had some mild short term memory impairment, that he suffered from dementia, but considered at it was at the "mild end of the spectrum". Dr Samuels also considered that the applicant had mild anxiety symptoms and was mildly depressed. Dr Samuels considered the applicant's cognitive deficits were unlikely to improve over time. The doctor considered that the applicant would find the Court process fatiguing and stressful, and that would compound his cognitive difficulties. Dr Samuels was also of the opinion that the applicant was not fit for trial within the R v Presser [1958] VR 45 test.
7. There is before me the decision of the Mental Health Review Tribunal dated 19 June 2016. The tribunal did not receive any additional expert reports, however it did take evidence from an occupational therapist who assists the applicant with his day-to-day needs. The tribunal recorded that the occupational therapist gave evidence that the applicant had experienced a physical decline in the past 12 months, but that there had not been any significant change in his cognitive health.
8. Dr Nielssen reassessed the applicant on 1 December 2016 by interviewing him in his room at a nursing home in Croydon. Dr Nielssen recorded that the applicant was observed sitting in a chair staring into space. The doctor also recorded that the applicant did not remember him from the previous interview. Dr Nielssen recorded that the applicant had difficulty rising from a chair, had involuntary tongue protruding movements, had a slowing of movements with a fine tremor or Parkinson's disease. The doctor also recorded the doctor being anxious and confused about his appearance in Court, which was to be the following Monday, 5 December 2016. Dr Nielssen recorded that there had been an obvious decline in the applicant's mental performance over the previous 18 months. Dr Nielssen remained of the opinion that the applicant was unfit for trial, but also considered that the applicant was unfit to attend Court because of his physical condition, and the confusion and anxiety that he would be likely to experience in attending Court.
9. Dr Roberts saw the applicant again on 2 December 2016 at the aged care home in which he resides. Dr Roberts recorded that the applicant had no memory of having previously met Dr Roberts and had no memory of having been taken inadvertently to Dr Roberts' surgery earlier on 2 December 2016. The applicant had no recollection of his solicitor's name, that solicitor having acted for him for a number of years.
10. Dr Roberts states that in common with demented, aged persons, the applicant lives according to a routine. Any change in that routine such as attendance upon the special hearing would, according to Dr Roberts, be a significant departure from routine and would cause additional stress to that which such a hearing would impose upon a person who was not demented.
11. In terms of his observable frailty, the doctor said that the applicant presented with an abnormal gait and appeared to be unsteady. Dr Roberts was of the opinion that there was evidence of a deterioration in the applicant's cognitive function over time and that he had difficulty in orientating himself even in familiar surroundings. Dr Roberts in his report of 4 December 2016 expressed the following opinion: "The ability of Father Arrivoli by virtue of his dementia to cope with the proposed hearing would potentially result in heightened agitation, stress accompanied by physiological concomitance of anxiety which have a potential to give rise to serious and potentially fatal consequences in view of his underlying cardiac state".
12. The report considered that it was appropriate for the applicant to be assessed by a specialist cardiologist to ensure that his attendance upon Court did not constitute a life threatening event due to increased adrenalin level associated with heightened agitation. Dr Roberts in that report considered the applicant suffered from moderate to severe dementia but not the most severe form of that disease.
13. It was noted earlier that on 5 December 2016, being the first day fixed for the special hearing, the applicant complained of chest pains and was taken from his aged care home to Concord Repatriation Hospital where tests were performed and he was discharged later that night. He was later seen that night or day by Dr James Otton, a cardiologist attached to St Vincent's Clinic annex. The doctor did not have available to him the discharge notes from Concord Repatriation Hospital. When seen by Dr Otton, the applicant had elevated blood pressure being 160 over 80, he had an elevated heart rate of 100 beats per minute. Dr Otton detected a prominent ejection systolic murmur in the aortic area consistent with aortic stenosis. An ECG was performed and showed a first degree heart block but no evidence of a myocardial infarction. The echocardiogram showed that his overall heart function was normal and a mild left ventricular hypotrophy consistent with a history of hypertension. The aortic valve was also calcified.
14. Dr Otton considered that the recent chest pain was likely to have been a result of anxiety and psychological stress rather than coronary ischemia or an acute coronary event. Dr Otton also expressed the opinion that as a 94 year old with demonstrated vascular disease, the applicant is at a high risk of coronary and other vascular events. The doctor considered that this risk is partly mitigated by his current medications. Dr Otton considered that the applicant's life expectancy was slightly less than three years which is the life expectancy of a 94 year old male.
15. Dr Otton recorded that psychological stress is known to increase coronary events and noted studies whereby such stress has been said to double or triple the daily cardiovascular event incidents over the short term. The doctor considered that there may be an increase in cardiovascular risk with prolonged stress. The doctor considered that if the special hearing proceeded, he would recommend a low dose of a beta blocker which may mitigate some of the cardiovascular effects of psychological stress.
16. Dr Roberts again saw the applicant on 8 December 2016. The doctor expressed the opinion that the applicant remained at risk: "From the impact of attending the special hearing and developing a significant increase in anxiety to the point where he is at risk as a demented person being unable to cope with the sensory input arising in an unfamiliar situation and of being exposed to distressing accusations which he denies".
17. Dr Roberts stated that he was prepared to certify on psychiatric grounds alone that the applicant was unfit to attend the special hearing. Dr Roberts in his report of 8 December 2016 opined that having regard to both the medical and psychiatric aspects of the applicant's health, if the applicant attended a special hearing, it posed an unacceptable risk to his well-being and potentially posed a risk to his life.
18. Dr Roberts also gave evidence before me on 8 December 2016. That evidence confirmed in essence the contents of his reports that are before me and observations he made of the applicant on 2 and 8 December 2016. Dr Roberts was asked without objection whether he had previous experience in cases in which the issue of the correlation between psychological stress and coronary events was the subject of expert evidence. Dr Roberts gave evidence that he had such experience and the evidence in those cases had been similar to the opinion of Dr Otton, namely that there was a significant increase of risk of cardiovascular event incidents as a result of psychological stress.
19. Dr Roberts gave the following evidence without objection: Q. "In conclusion, I just want to ask you this. What is your opinion as to the risk of a major event involving the accused if for instance he is - it is continued that he be made aware of him having to come to a special hearing, do you understand the question?" A. "Yes. I think there are two components to, two components to, to the answer. Confining myself to the psychiatric first, I would consider that because of his level of dementia, the departure from normal routine, the strange environment of the Court, the matters that are to be dealt with, I consider that his fear and anxiety would on reasonable psychiatric grounds, having regard to his symptoms in the preceding few days would potentially cause extreme levels of anxiety and possibly a catastrophic reaction and he, he would become from a psychiatric viewpoint highly likely to become unwell. I doubt whether he, he would be able to, to remain in that environment. From the psychiatric and physical medical point of view, I am of the view that if such a level of anxiety took place, there would be a probability that the heightened anxiety could impact upon his cardiac state, that if one assumes that, this is what Dr Otton says are 300 up to a 300%, three times increased risk of a cardiac event, that such would potentially pose a risk to his life and taking all of these matters into consideration and only considering Father Arrivoli as a psychiatrist and having regard to the risks, I am of the concern at him attending such a hearing and I would consider that medically, not considering matters that the Court may well consider that such constitutes an unacceptable risk to his well-being and potentially poses a risk to his life".
20. In cross-examination, Dr Roberts did not depart from that opinion and his opinion was not effectively challenged in any substantial way during the cross‑examination. In cross-examination, the Crown took up with Dr Roberts the period of stress that might cause a major medical event in the applicant. He was asked at transcript 10 line 49: Q. "When you refer to and it is in Dr Otton's report as well, if he was to undergo prolonged stress, what do you anticipate that would mean as far as time?" A. "Well, the longer the timespan, the more stressful and difficult it would become. Dr Otton doesn't specify the length of time but he displays distress and cardiovascular symptoms and agitation even before he got to Court. He hasn't even left the convalescent home. He is already affected merely by the contemplation of having to go so I think he would display significant symptoms to the point of requiring medical intervention because if he gets chest pain, you're going to have to assume that it's a cardiac event unless you prove otherwise so the situation really is that even in a brief period of time, he will experience significant distress".
21. The issue of whether the risk of a significant adverse medical event was reduced if hearing days of two hours in length were adopted was also taken up with Dr Roberts at transcript p 11 line 23. The doctor gave the following evidence in that regard: Q. "Do you think there would be any reduction in the risk if it was, for example, to sit in two hour sittings or not full days?" A. "This was actually a question raised with the expert in a matter that Mr Walsh referred to. It's a difficult question to answer because let's assume that he would sit in a Court for two hours and then there would be a break but of course he knows that after a break or the next day he will be coming back so the fact that you are breaking the hearing up into smaller periods of time would not necessarily reduce the effect of the stress because you've got the concept of anticipatory stress because you know very well that you would be required to attend at a latter point. It would be a matter of evaluation".
22. Dr Roberts was also asked about Dr Otton's opinion that the risk of a substantial adverse medical event could be mitigated by having the applicant take a beta-blocker. Dr Roberts gave evidence that the risk would be potentially reduced but not abolished. He expressed the opinion that given the age of the applicant, the use of the beta-blocker had other possible consequences adverse to the applicant.
23. At transcript p 15 line 5, Dr Roberts gave the following evidence: Q. "So there is no chance of eliminating the risk but there are possible ways to mitigate, is that - " A. "There is no way that the risk can be abolished. There are potential pathways to introduce a mitigation that I would think would be most likely of minor degree. It would not in any manner abolish the significant risk that I consider is present".
24. The evidence of Dr Roberts about his conclusions based on observations of the applicant on 2 and 8 December 2016 was not evidence that the Crown had been served with at a time when it could realistically promptly ascertain if there was contrary medical opinion available to it and adduce any such evidence before me. The Crown made no application for any adjournment of the proceedings so that appropriate enquiries could be made concerning evidence that might be available to it that contradicted Dr Roberts' opinion, on the issues of whether or not the applicant was well enough to attend the special hearing and whether or not if he did so there was a significant risk of the applicant suffering a catastrophic medical event.
25. On one view it might be thought that some of Dr Roberts' opinions went beyond the scope of his expertise as a psychiatrist, although it must be remembered that he is a fully qualified medical practitioner with a particular expertise. However, the overall evidence before me is to the effect that additional stress increases the risk of an elderly man with the physical ailments the applicant has of having a catastrophic medical event. In any event, Dr Roberts' evidence was not the subject of any objection by the Crown and in general terms is consistent with the opinion of Dr Otton.

THE ISSUE OF DELAY

1. I turn then to the issue of delay.
2. There are two distinct periods of time that in my view should be considered in relation to the issue of delay. The first is the period prior to the complainant making a complaint to the police. The evidence is that the complainant first made a statement to the police on 24 August 2006. The inference that is available from the evidence is that apart from taking a statement from the complainant, no actual investigation of the complainant's allegations was undertaken. The evidence supports an inference that no police investigation was undertaken at that time because the complainant did not wish to pursue the matter.
3. The delay in the complaint being made is between 32 and 33 years, a significant period but not unusual in cases of alleged child sexual abuse. There is no evidence that as at 2006 the applicant was made aware that the complainant had made the allegations to the police. I mention that as there is no evidence that would support an inference that in 2006 the applicant should have taken steps to secure any evidence that might support his denial of the allegations. In saying that, I am in no way suggesting that there is some onus on an accused person to produce evidence at his trial or special hearing to prove that he did not commit the offences alleged against him.
4. At least by the time the applicant was provided with a letter dated 3 December 2008 through the Catholic Church's processes, the applicant was aware that the complainant had made allegations against him. The evidence, however, does not suggest that the applicant knew of police involvement in the matter until 19 November 2014 when he was spoken to by Detective Senior Constable Glen Ellis that day, or that there was any likelihood he would face criminal charges. As I recorded earlier, he was charged on 24 November 2014.
5. It is relevant, in my view, to consider that there was a second period of delay in the bringing of the charges, being the delay between the taking of the statement by the police from the complainant and the laying of the charges. That is a delay of a further eight years. Apart from the fact that it appears that at the time of taking of the police statement the complainant indicated he did not wish to pursue the matter, there was no explanation as to why the police carried out no further investigation of such serious offences in that eight year period. If they had done so, it is a reasonable inference that a decision whether to charge the applicant would have been made at a much earlier time than it was.
6. The approach by the police in not properly investigating the allegations when initially made by the complainant was not, in my view, a proper approach in the circumstances. These are serious allegations made approximately 33 years after the offences are alleged to have been committed. Irrespective of the wishes of the complainant, in my view the police had an obligation to investigate the allegations at the time that the complaint to them was made in 2006. As Adams J said in R v Littler [2001] NSWCCA 173 at [25]: "In cases of this kind where allegations are made after such a lengthy delay, the investigating police have the duty, in my view, to search out contemporaneous witnesses who might be able to shed light on the relevant circumstances. It is not appropriate to leave this investigation to the defence or, of course, to the complainants. Although in a sense it is for the applicant to establish such prejudice as would justify a stay of proceedings, this should be in the context of a full and adequate investigation by the prosecuting authorities which provides a context that enables the court to evaluate in a sensible way the prejudice affecting the accused".
7. The failure of the police to investigate the matter for a further eight years has made the task of determining the prejudice to the applicant as a consequence of the delay in the investigation a difficult one. In his interviews with the Catholic Church investigator in 2008 and 2009 the applicant, while conceding the complainant had stayed at the presbytery on certain occasions, vehemently denied the allegations. The applicant in those interviews raised the spectre of the complainant having confused him with another priest, a Father McNeal, that the applicant believed had abused children in his care. The evidence is that Father McNeal is now deceased. The evidence does not reveal when it was that Father McNeal died.
8. The applicant also pointed to a failure of the police to locate relevant witnesses, such as altar boys from the time and from the parish concerned who might have given evidence that altar boys did not stay at the presbytery with the applicant.
9. Here the Crown case statement indicates that the Crown case is that at the time count 2 was committed, two other altar boys were said to have stayed at the presbytery and one in the same room as the complainant at the time of the offence. While I accept that it was incumbent upon the police to investigate and locate all relevant witnesses from the time, and that it appears no real investigation of other altar boys was undertaken by the police. I do not consider that the failure to do so is particularly significant in this case, although given what the Crown case is in relation to count 2, clearly an investigation was warranted.
10. In the context of this case I have arrived at that conclusion because in the interviews conducted with the applicant by the Church's investigator he accepted that the complainant did on occasion stay alone in the presbytery.
11. The evidence does not allow me to say when the applicant's dementia initially set in and when his cognitive abilities began to deteriorate. I think it is a reasonable inference that in 2006 he was likely to have been far better in a cognitive sense than he currently is, and would have been in a much better position to recall relevant matters for his defence of the charges. Similarly in 2008 and 2009 he is likely to have been in a far better position to recall relevant matters in support of his defence of the allegations. The whole thrust of the medical evidence is that the decline in his physical and mental health has been in the last few years. The delay in the police investigations since 2006 has prejudiced the applicant in his ability to defend the allegations in the sense discussed by Adams J in Littler in para 38.

THE PRINCIPLES TO BE APPLIED

1. I turn then to the relevant principles to be applied.
2. While some reliance upon the delay in the investigation and prosecution of the allegations was relied upon by the applicant, the primary thrust of his application is the state of his physical and mental health and the risk of him suffering a catastrophic medical event should the special hearing not be permanently stayed. The submissions of the applicant were in essence that the delay, together with the medical evidence, meant that this was an exceptional case justifying the grant of a permanent stay of the special hearing.
3. A permanent stay of criminal proceedings is an exceptional remedy. The High Court has described the granting of a permanent stay as a drastic remedy, tantamount to a continuing immunity from prosecution. It should only be granted in extreme or exceptional circumstances. The applicant for a permanent stay has the onus of establishing the factual circumstances which ground the application and warrant the use of the exceptional power. The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness; will be so unfairly and unjustifiably oppressive as to constitute an abuse of process, see R v Edwards [2009] HCA 20.
4. The Court must be satisfied that there are no other available means to the Court to ensure that a fair trial can be afforded an accused prior to granting a permanent stay, see Jago v District Court of New South Wales & Ors (1989) 168 CLR 23, R v Glennon (1992) 173 CLR 592.
5. Where delay is relied upon as a ground for the granting of a permanent stay it will only be appropriate to grant a permanent stay where the applicant demonstrates that the delay has resulted in the applicant being unable to receive a fair trial. That will require the applicant to show that a real prejudice has been caused to him as a consequence of the delay, see Jago.
6. The power to grant a permanent stay extends to special hearings. The approach to be taken to applications for a permanent stay of a special hearing based upon the deteriorating mental health of an accused was considered by the High Court in Subramaniam. The High Court made clear in [28] that an application for a permanent stay of a special hearing had to be seen in the context of the statute that establishes that particular procedure.
7. One important purpose of the Mental Health (Forensic Provisions) Act was said to be an ameliorative one to give a person unfit to be tried an opportunity of being acquitted. It is also necessary to consider the other purpose of the Act, which is that alleged victims be given an opportunity to see that a form of justice is achieved, even if it is not perfect.
8. The High Court, in circumstances where it was argued that there was a deterioration in an accused's mental health and that the continuation of a trial might potentially aggravate that deterioration, endorsed as the appropriate test to apply the following: "Would it be out of accord with common humanity" to allow it to proceed?; see para 31. The High Court recognised in the context of a special hearing there may still be cases of mental infirmity calling for the grant of a permanent stay, although considered that instances of such cases are likely to be rare. The High Court noted that the Act had not expressly or by implication forbid the application of the principles concerned with the granting of a stay and that common humanity would argue in favour of a permanent stay if the risk of exacerbation of a condition was a real one and a likely exacerbation of a condition grave; see para 35.
9. The applicant here relies upon the deterioration of both his mental and physical health and the risk of exacerbation to both his mental and physical health should a special hearing not be stayed. I consider that the test endorsed by the High Court in Subramaniam is the appropriate test to be applied to the applicant's application, despite the fact that the applicant does not rely solely upon his deteriorating mental health.

MY DETERMINATION

1. While the delay here in the investigation is very considerable, it was exacerbated, in my view, by the police failure to investigate the matter in 2006, I do not think that factor alone justifies the granting of a permanent stay of the special hearing. I do not consider the level of prejudice which I discussed earlier is such that on its own it justifies the granting of a permanent stay. The prejudice arising out of the delay is, however, still a relevant consideration in relation to the overall application.
2. I earlier reviewed in detail the medical evidence that is before me. That evidence satisfies me that the applicant is a physically frail 94 year old whose life expectancy is less than three years. The evidence satisfies me that both his physical and mental health has deteriorated significantly over the last two years. He has a number of significant physical health conditions, being hypertension, a blockage in the carotid artery, chronic kidney disease, ischaemic heart disease, glaucoma, asthma and osteoarthritis of the knees. The medical evidence also satisfies me that he has moderate to severe dementia, although his dementia is not the most severe form.
3. I am satisfied based on the evidence and the reports of Dr Roberts and Dr Nielssen that if the special hearing proceeded there is a high likelihood that the applicant will suffer extreme levels of anxiety and a high likelihood that he will become, from a purely psychiatric point of view, unwell. I am also satisfied based on the evidence of Dr Roberts, Dr Nielssen and Dr Otton, and the events on 5 December 2016, that the high level of anxiety that the applicant would experience if the special hearing proceeded, given his frail physical condition and cardiac condition, results in there being a real and significant risk of him suffering a life threatening cardiac event.
4. I do not consider the suggestion that the applicant be prescribed beta blockers and that the Court sit only two hours a day would significantly reduce the risk of a life threatening event occurring. In that regard I accept the uncontradicted evidence of Dr Roberts on those issues which I referred to earlier when reviewing the medical evidence.
5. I am satisfied for the above reasons that there is a real risk that if the special hearing continued there would be a significant deterioration in both the physical and mental health of the applicant. I am also satisfied that there is a real risk that the applicant will suffer a catastrophic medical event such that his life would be in danger if the special hearing continued.
6. For these reasons I am satisfied that it would be out of accord with common humanity to allow the special hearing to proceed. The continuation of the special hearing in those circumstances would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. In coming to this conclusion I have had regard to the serious nature of the allegations and the statutory purpose behind special hearings discussed by the High Court in Subramaniam. I therefore order that the special hearing under the Mental Health (Forensic Provisions) Act be permanently stayed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 May 2017