Burrows v Patsantzopoulos

Procedural history

1. On 17 October 2013, the plaintiff first reported the alleged incidents to the New South Wales Police.
2. On 22 May 2017, the defendant was arrested by the New South Wales Police and relevantly charged with the following offence: "That between 1 January 1990 and 31 December 1992, at Merewether in the State of New South Wales, did assault Lauren Burrows and at the time of the assault committed an act of indecency on her, she then being a person under the age of 10 years, namely, 6, 7 or 8 years contrary to sections 61E(1) and 61M(2) of the Crimes Act 1900 (NSW)."
3. On 16 August 2017, the defendant was assessed by Dr Bernard Walsh, Geriatrician, for the purpose of ascertaining whether he was fit to stand trial. Dr Walsh opined that the defendant suffered persisting neurological signs of major and permanent, dominant cortical brain tissue destruction as a result of his 2014 stroke. Superimposed on that diagnosis, was the strong clinical likelihood of vascular dementia. In the circumstances, Dr Walsh was of the opinion that the defendant would not be able to provide appropriate instructions to his legal representatives, by reason of the communication deficits, arising out of the 2014 stroke. Further, Dr Walsh opined that the defendant would not be able to adequately follow or understand the presentation of evidence against him because of the cognitive impairment arising from his emerging vascular dementia.
4. The defendant was subsequently assessed by Ms Anne Lucas. Ms Lucas is a Forensic Psychologist. The defendant was assessed by her at the behest of the Crown. Following testing of the defendant, Ms Lucas issued a report on 29 August 2018. Ms Lucas, in applying the standards identified in R v Presser (1958) VR 45, came to the conclusion that the defendant was not fit to stand trial.
5. On 22 October 2018, Ellis DCJ of this Court undertook a fitness inquiry under the provisions of the then Mental Health (Forensic Provisions) Act 1990 (NSW) ("MHFPA") and concluded that the defendant was unfit to be tried in criminal proceedingss. The defendant was then referred to the MHRT for a determination as to whether he would become fit to be tried within 12 months.
6. On 11 January 2019, the MHRT determined that the defendant was presently unfit, and would not become fit to be tried within 12 months of the Court's finding of unfitness.
7. In 2020 a Special Hearing took place under the then Mental Health (Forensic Provisions) Act 1990 (NSW) before Sutherland DCJ. In the result, His Honour entered a verdict that on the limited evidence available, the Court was satisfied that the offence relating to the plaintiff was established as having been committed by the defendant (MHFPA, s 22(1)(c)).
8. On 18 June 2021, the Court imposed a "limiting term" within the meaning of Part 4, Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The limiting term was for a period of 3 years.
9. The defendant has since that time been detained as a forensic patient by orders of the MHRT dated 28 October 2021 and 11 May 2022.

Principles Relating to Applications for Permanent Stay

1. The principles which govern stay applications resulting from a loss of capacity by a defendant are discussed in cases such as Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218 ("Moubarak") and Chalmers v Leslie & Anor [2020] QSC 343 ("Chalmers"), The Council of Trinity Grammar School v Anderson (2019) 101 NSW LR 762 ("Anderson") and Connellan v Murphy [2017] VSCA 116 ("Connellan").
2. The principles which can be derived from the authorities were not in dispute and can be summarised as follows. A stay is only granted in exceptional circumstances: Connellan at [54]. The onus rests "squarely" on the defendant to justify a stay: Moubarak at [71(1)] (per Bell P as his Honour then was).
3. The onus on the defendant to prove the need for a permanent stay is "a heavy one" (Goldsmith v Sperrings Ltd (1977) 1 WLR 478 at 498) and the power to grant a permanent stay is to be exercised "only in the most exceptional circumstances" (Williams v Spautz (1992) 174 CLR 509 at 529, [42]). The onus is heavy because the need to provide remedy for an abuse of process must be counterbalanced by the need for justice for the victims (in this case) of sexual abuse. In Anderson, the granting of a permanent stay was described as an "exceptional remedy" (at [422] per Bathurst CJ).
4. In Connellan, their Honours stated that for a stay of proceedings to be granted, "the fundamental test is whether, in the circumstances, the proceeding would be manifestly unfair to the defendant or would otherwise bring the administration of justice into disrepute among right-thinking people" (at [54] per Priest, Beach, and Kaye JJA).
5. Importantly, in Moubarak, Bell P stated that "a fair trial is not synonymous with a perfect trial" (at [89]).
6. A fair trial involves a balancing exercise as to whether the unfairness of granting a stay outweighs the unfairness to a defending party by reason of the continuation of the proceedings: Moubarak at [205] (per Emmett AJA).
7. The relevant principles for the issue of loss of capacity leading to the need for a permanent stay were extracted from Moubarak and summarised in Chalmers. These are: 1. Whether the plaintiff confronted the defendant with the allegations and whether there is a record of the defendant's response; 2. Whether the defendant had medical or cognitive conditions before or at the time that proceedings were commenced; 3. Whether a complaint was made to the police and whether a police statement was obtained; 4. Whether there is reliable evidence of any persons who could give direct evidence of the allegations; 5. Whether the defendant is able to give instructions as to the allegations for the purposes of the defence and during the course of any trial; 6. Whether the defendant is able to give evidence in the proceedings; 7. Whether there is any documentary evidence which might be able to be used with respect to the likelihood or otherwise of the alleged events having taken place.
8. I shall refer to these factors as "the Chalmers Factors".

The Defendant's Case

1. The defendant puts his case for a permanent stay on the following basis.
2. He submitted that the proceedings should be permanently stayed on the grounds that they would produce manifest unfairness to him, and would bring the administration of justice into disrepute. He contended that it would not be possible for him to obtain a fair trial. In that regard, the defendant relied on the following matters: 1. First, by reason of his mental or neurocognitive condition, the defendant will be effectively involuntarily absent for the whole of the proceedings. 2. Secondly, the defendant's stroke, consequential brain damage and cognitive decline occurred prior to his arrest on 22 May 2017. 3. Thirdly, the defendant had suffered Major Neurocognitive Disorder, and specifically, vascular dementia, by the time of the commencement of these proceedings. 4. Fourthly, the defendant did not satisfy the Presser criteria, which insofar as they may be translated to the civil context, meant that he is incapable of following or understanding the proceedings, making his defence, or properly instructing his legal representatives. 5. Finally, he submitted that a finding to the effect that he is unfit to stand trial in criminal proceedings, yet fit to stand trial in civil proceedings, involving identical factual allegations, would be apt to undermine respect for the rule of law and bring the administration of justice into disrepute (Moubarak at [108]-[109]).

The Plaintiff's Case

1. The plaintiff in turn addressed the issue of loss of capacity by reference to the Chalmers Factors, and more specifically by reference to subparagraphs (a), (c), (e) and (g) of those factors.

Subparagraph (a) - Confronting the Defendant with the Allegations

1. The plaintiff pointed out that in Moubarak, Leeming JA stated that a reason for his Honour agreeing to the granting of the permanent stay was that the defendant "was never confronted with the detail of those allegations while of sound mind" (at [188]). The plaintiff said that her case should be distinguished from Moubarak, in that the plaintiff in the present case confronted the defendant on many occasions before he suffered his stroke.
2. She points out that in 2007, the plaintiff was overcome with rage and attended a barber shop where the defendant worked, accusing him of being a child molester, in front of a customer. She said he should be in gaol before she left the shop. She submitted that the defendant was on notice of the allegations following this date, and had the ability, had he chosen to do so, to bring these serious allegations to the attention of the police, or take steps to protect his interests.
3. Next, the plaintiff says that approximately six to twelve months later, toward the end of 2007, the plaintiff wrote a letter to the defendant apologising for the way she spoke and forgiving him for what he did to her. She delivered it to him at the barber shop where, after initially declining, he eventually took the letter. The plaintiff submits that the defendant had the opportunity to respond to this letter, or take appropriate steps to bring the matter to the attention of police, but chose not to do so.
4. In July 2013, the plaintiff contacted Father Scordilis at the Greek Orthodox Church in Newcastle, who told her she was not the first person to come to him with allegations about the defendant. Father Scordilis implored her to tell the police of her allegations.
5. The plaintiff subsequently made her initial statement to police in October 2013. This, she pointed out, was prior to the defendant's cognitive decline.
6. Subsequently, on several occasions in February and March 2015, the plaintiff engaged the defendant in telephone conversations which were covertly recorded by police. These calls are generally known as "pretext calls". She also met with him at a café and had an extensive conversation with him, which was also covertly recorded. Throughout these conversations, the defendant was cognisant, and made no admissions in respect of the allegations.
7. Importantly, the plaintiff submitted the recorded conversations demonstrated that at that time the defendant was still able to engage in extensive conversations with hers. This, the plaintiff submitted, indicated that he had the ability to ssaddress the allegations, and the recordings provide evidence of his responses.
8. Further, the plaintiff points out that the decision of the MHRT, dated 14 February 2019, discloses that the plaintiff was assessed by Dr Walsh, Specialist Geriatrician, in August 2017. At that time, the defendant still worked as a barber. It was reported that he had trouble communicating in groups and with multi-tasking. His daughter apparently also noticed he would retreat to his native Greek language. Relevantly however, Dr Walsh considered his dementia was 'mild to moderate' and noted that 'such patients often function reasonably in the community'. The plaintiff says that by this time, the defendant had already been arrested and charged with multiple sexual assault counts. He had also declined to be interviewed by police, and had denied the allegations of sexual assault.
9. In summary, the plaintiff contended that she had confronted the defendant on several occasions prior to his cognitive decline, and in so doing afforded him an opportunity to respond, and that his responses are recorded. These facts, she submitted, weighed heavily against a permanent stay of proceedings being granted.

Subparagraph (c) - Police Statement

1. On 17 October 2013, the plaintiff made her first statement to the police.
2. The plaintiff drew attention to the fact that it was not until 30 April 2014, that is to say, more than 6 months after the plaintiff gave her statement to police, that the defendant suffered a stroke.
3. Accordingly, the plaintiff submitted that a police statement was made before the defendant's decline in cognitive capacity, and there existed the opportunity for police to conduct an interview with him. The plaintiff submitted that whether or not the police contacted the defendant for comment during this 6-month period, and what, if anything, the defendant did in response to the police investigations remains to be explored at the hearing.
4. The plaintiff contended however that what was known was that when the defendant was eventually arrested and charged on 22 May 2017, he declined to be interviewed and denied the allegations. This, she submitted, demonstrated a capacity in the defendant to defend himself at that time.

Subparagraphs (e) and (g) - Criminal Conviction / Ability to give Evidence

1. The plaintiff submitted that in Moubarak, Bell P stated (at [106]): "Claims for civil liability for damages for sexual assault - questions of the standard of proof apart - bear a strong affinity with a criminal charge of sexual assault."
2. Further, Bell P emphasised that: "coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff's complaint to police because "the minimum requirements for a fair trial" would not be present, it would, in my opinion, offend commonsense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations." (at [108])
3. The plaintiff submitted that this principle can be consistently applied to the present case, albeit inversely. She argued that since the defendant was fit to face criminal charges in 2020, well after his alleged cognitive decline, in respect of similar complaints (and in one discreet respect, an identical complaint) and subsequently be convicted, it offends common sense and brings the administration of justice in disrepute to suggest that a fair trial cannot be secured in respect of the subject allegations. I shall refer to this as "the Coherence Argument".
4. The plaintiff submitted that in Chalmers (at [25]), a permanent stay was granted for, among other reasons, the absence of any useful "documentary evidence which might be able to be used with respect to the likelihood or otherwise of the alleged assaults having taken place." The principle, she argued, applies in this case, albeit inversely.
5. The plaintiff contended that the certificate of conviction under s 178(3) of the Evidence Act 1995 (NSW) is admissible and provides highly probative documentary evidence to establish the truth of the allegations made in the Statement of Claim.

Subparagraph (e) - Ability to Give Instructions (e)

1. As regards to the defendant's capacity to give instructions, the plaintiff submitted that the tutor may do anything that the rules allow or require a party, being under legal incapacity, to do in relation to the conduct of any proceedings under r 7.15(6) of the Uniform Civil Procedure Rules 2005 (NSW). She points out that the tutor of the defendant has consented to act for the defendant on 9 August 2021.
2. The plaintiff went on to contend that the defendant may have representation by counsel with instructions being provided in the defendant's interests by his tutor.
3. The plaintiff submitted therefore that the tutor appointed by the defendant is able to do anything on the defendant's behalf that he would be ordinarily authorised or required to do. This hearing is capable of being defended on behalf of the defendant by his tutor, and his legal representatives.

Other Evidence Available (Tendency Witnesses)

1. The plaintiff pointed to the fact that in Ellis v Pell [2006] NSWSC 109 the death of the perpetrator leading to the obvious fact that he could not provide a full response to the allegations, was held not determinative of the issue as to whether a stay should be granted. This was so, in that case, as there was uncontested evidence of another witness that "deprived the circumstance of much of its force" (at [88]).
2. In the Special Hearing, the defendant was charged and found guilty of 8 other counts of sexual assault, against other victims. The plaintiff submitted that these victims who gave evidence at trial, would be available to give evidence in the civil proceedings, providing highly probative tendency evidence. She points out that these witnesses are just as available to the defendant as they are to the plaintiff.
3. In addition, the plaintiff relied upon the fact that the latest psychiatric report demonstrates that the defendant is still able to distinguish between guilty and not guilty, thus was capable of giving instructions to his solicitors at least at a basic level (see report of Ms McMillan of 13 September 2022, answers to questions 11 and 12).
4. The plaintiff submitted that, while accepting the fact that the deteriorating cognitive condition of the defendant inhibits his capacity to give detailed instructions, she points to the fact that in Gorman v McKnight [2020] NSWCA 20 ("McKnight") the defendant had died, and yet the proceedings were not stayed. She further drew attention to the fact that, as in this case, in McKnight the defendant denied the charges when he was arrested, and also denied them in a pretext call.
5. The plaintiff also points to the fact that it is evident from the judgment of Sutherland DCJ in the Special Hearing that there was cross examination of complainants in relation to matters of detail which could only have come from the instructions of the defendant.
6. In summary the plaintiff contended that the fact that the defendant might not be able to fully participate is not determinative of the defendant's application.

Consideration

1. In my view, and substantially for the reasons articulated by the plaintiff as set out above, I do not consider that the defendant has discharged the heavy onus of establishing a basis for a permanent stay.
2. It cannot be gainsaid that the defendant's capacity to mount his defence is compromised by his inability to give evidence, and provide detailed instructions to his lawyers. However, his inability to fully participate in the hearing cannot be determinative of this motion. Moreover, as Ms McMillan says in her most recent report, the defendant is still capable of understanding the concepts of "guilty" and "not guilty" and expressed himself to her as being "not guilty". Thus it would be possible for the tutor to file a verified defence denying the plaintiff's case.
3. I should also add that a denial of the allegations has been the defendant's consistently articulated position from prior to suffering his stroke. It was also his position, and clearly articulated, albeit after the stroke, in the pretext telephone calls and in the secretly recorded face-to-face meetings with the plaintiff.
4. It is also notable, in this regard, that the cross examination by his counsel of the complainants in the Special Hearing suggested that the defendant was able to give detailed instructions to his counsel at the time of that hearing.
5. I also take into account the fact that the plaintiff provided a statement to the police in October 2013 and, although the defendant was not arrested and charged until May 2019, he declined an interview, and denied the allegation.
6. I also accept the plaintiff's contention that there is other evidence available to the parties which go to the issue of the liability of the defendant. In the Special Hearing the complainants in each of the 8 counts which the defendant faced on his indictment gave evidence. This evidence was admitted as tendency evidence across the indictment, and no doubt would be sought to be adduced in these proceedings as tendency evidence.
7. I acknowledge that the defendant's cognitive state, being what it is, will necessarily result in the hearing of these proceedings being imperfect. In that regard, however, it is important to bear in mind that there will seldom, if ever, be a perfect trial or hearing, and that the law does not require one to be achieved. What is requires to be achieved is a fair trial. As Bell P stated in Moubarak "a fair trial is not synonymous with a perfect trial" (at [89]).
8. The reason for this was in part explained by the High Court in R v Edwards (2009) 255 ALR 399 where the High Court in a joint judgment observed (at [31]): "Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair" (my emphasis)
9. I believe that a fair trial, albeit an imperfect one, can be achieved in this matter, or more correctly, that the defendant has failed to discharge the heavy onus of establishing that such a fair trial cannot take place.
10. I should mention the submissions made by the plaintiff, in opposition to the stay application, with which I do not agree. As they thus formed no part of my reasoning in refusing the stay, I shall only deal with them briefly.
11. First, I do not accept the Coherence Argument. I do not find that the Special Hearing verdict of Sutherland DCJ involves an unequivocal finding that the defendant was fit to stand trial, such that it would bring the law into disrepute if I was to conclude that the risk of an unfair trial in the present circumstances required the granting of a stay.
12. In my view, Sutherland DCJ's verdict, far from establishing that the defendant was fit to stand trial, was predicated on the opposite conclusion namely; that he was unfit to stand trial.
13. I also do not accept that the verdict of Sutherland DCJ is available to prove the liability of the defendant in the present proceedings.
14. The parties provided detailed and very helpful supplementary submissions on this point, which amongst other things tracked through a complex legislative history. Ultimately, they agreed that the issue was to be determined pursuant to the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
15. Section 62 of that Act provides as follows: "62 Verdict of offence committed on limited evidence available A verdict at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged - (a) constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates, and (b) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and (c) is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation."
16. I agree with the submission of the defendant that the references to "enabling a victim of the offence to make a claim for compensation", where they appear in s 62(c), should be construed as referring to the making of a claim for compensation pursuant to the provisions of the Victims Rights and Support Act 2013 (NSW) ("VRSA").
17. In my view that this is the preferred construction of s 62 as a conviction provides a pathway to a claim for victims of crime compensation under the VRSA, and as such can be seen as an engaging event to compensation. This is to be contrasted with a common law claim for damages, such as the plaintiff brings in these proceedings, do not require a conviction to "enable" the claim to be made.
18. I also agree with the further reasons for that conclusion as articulated by the defendant in his supplementary written submissions of 23 September 2022.
19. As this conclusion formed no part of my reasoning in deciding the defendant's notice of motion, I do not consider it to be necessary to elaborate further on my reasons in relation to this question.

Conclusion

1. Accordingly, the defendant's motion must be dismissed.

Orders

1. I make orders as follows: 1. That the defendant's motion dated 4 October 2022 be dismissed. 2. That the defendant pay the plaintiff's costs of and incidental to the motion. 3. The matter is relisted before the Judicial Registrar on Friday 14 October 2022.

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