DIRECTOR OF PUBLIC PROSECUTIONS v GILL

Gleeson CJ This is an appeal from a decision of Allen J ordering a permanent stay of proceedings in a criminal prosecution. The proceedings were commenced by two informations and, if they had taken their ordinary course, would have involved committal proceedings before a magistrate and, depending upon the outcome of the committal proceedings, a trial.

The matter involves yet another attempt on the part of the authorities, following what the courts have described as appalling and inexcusable delay, to bring charges against a medical practitioner involved in the administration of deep sleep therapy at the Chelmsford Private Hospital.

The facts relating both to the conduct of those involved with the hospital, and also the conduct of the public authorities of the State charged with the oversight of such hospitals, are now notorious. Insofar as they bear upon the present matter they can be found in the judgments of this Court in Herron v MacGregor (1986) 6 NSWLR 246, and Gill v Walton (1991) 25 NSWLR 190, and in the judgment of the High Court of Australia in Walton v Gardiner (unreported, 29 April 1993). They are also set out at some length in the judgment of Allen J. It is therefore unnecessary either to repeat them in detail or to attempt a comprehensive summary.

The present case concerns the death at Chelmsford, in 1977, of Mr Adams who was a patient of the respondent, Dr Gill. Dr Gill was a general medical practitioner, and on occasions he administered deep sleep therapy to patients at Chelmsford. The person principally involved in that form of treatment was the late Dr Bailey, who died in 1985. The occasions on which Dr Gill administered such treatment were relatively infrequent as compared with Dr Bailey, and it appears that, in later seeking to justify his conduct, Dr Gill has relied upon the fact that he was following Dr Bailey's lead.

Mr Adams was a heroin addict. Dr Gill subjected him to deep sleep therapy for a purpose said to be related to treatment of his addiction. On 30 September 1977 Mr Adams died in Hornsby Hospital following a cardio-respiratory collapse which occurred on 23 September 1977 at Chelmsford. On 16 April 1992, over fourteen years later, the informations the subject of these proceedings were laid against Dr Gill. One information charged him with the manslaughter of Mr Adams, and the other charged him with recklessly causing grievous bodily harm.

Some of the significant events which occurred during the interval were as follows:

Soon after the death of Mr Adams the Government Medical Officer performed an autopsy. He formed the opinion that death was due to the effects of long drug abuse.

2 An inquest was held and the report of the Government Medical Officer was adopted by the Coroner.

3 In June 1979 the court ordered a reopening of the inquest, and a second inquest took place in February 1980. The Coroner had before him a revised autopsy report by the Government Medical Officer, who, having reconsidered the matter, adhered to his opinion that the brain softening that he had previously noted was the cause of death but attributed the softening not to narcoticism but to cerebral anoxia following the cardio-respiratory collapse at Chelmsford. There was no suggestion of criminal recklessness on the part of Dr Gill, who gave evidence and who was not subjected to critical cross-examination.

4 In 1985 criminal charges against Dr Bailey were dismissed at committal, the magistrate finding no evidence sufficient to commit him for trial.

5 In June 1986, following a report of a task force which inquired into the conduct of medical practitioners, including Dr Gill, at Chelmsford, the then Solicitor-General, Ms Gaudron QC, advised that the available evidence did not justify criminal charges against Dr Gill in respect of the death of Mr Adams. It was agreed that we may infer that Dr Gill was informed of this.

6 In 1986 the Department of Health commenced disciplinary proceedings against Dr Gill, under the Medical Practitioners Act 1938, in respect of his treatment of Dr Adams. The complaint alleged that Dr Gill exhibited gross negligence in that treatment.

7 In September 1986 this Court (Street CJ, Priestley JA and McHugh JA) granted a permanent stay of those disciplinary proceedings on the ground that they constituted an abuse of process (Herron v MacGregor (1986) 6 NSWLR 246). The court held that there had been an inordinate and inexcusable delay in the commencement of the proceedings, and by reason of that delay there would be serious prejudice to the respondent in defending himself against the charges.

8 The High Court refused an application for special leave to appeal against that decision.

9 In September 1988 a Royal Commission into the treatment of patients at Chelmsford was established, and that Commission reported in July 1990.

10 Following the Royal Commission further proceedings under the Medical Practitioners Act were commenced against a number of doctors involved with Chelmsford, including Dr Gill. Insofar as they concerned Dr Gill, the charges involved, amongst other things, a repetition of the original charges in relation to his treatment of Mr Adams.

11 In November 1991 this court (Gleeson CJ and Kirby P, Mahoney JA dissenting) granted a stay of those proceedings on the ground that they constituted an abuse of process (Gill v Walton (1991) 25 NSWLR 190).

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12 The High Court granted special leave to appeal against the decision of this court. On 29 April 1993 that appeal was dismissed (Walton u Gardiner, Mason CJ, Deane and Dawson JJ, Brennan and Toohey JJ dissenting).

13 In the meantime the present criminal prosecution was commenced, and in October last year Allen J made the order staying proceedings which is the subject of the present appeal. The appeal was argued in March, but we delayed giving judgment so that we could have an opportunity to consider the High Court's decision in Walton v Gardiner when it was handed down. In the light of the public controversy which has surrounded this history one particular matter should be mentioned. No attempt has been made in the present proceedings to suggest that the delay involved was in any respect the fault of Dr Gill. Allen J found that there was no fault on the part of Dr Gill, and there las been no challenge to that finding.

Similarly, in argument in this court in Gill v Walton, the argument proceeded upon the express basis of the correctness of the facts as originally found in Her r on v MacGregor. Those findings laid the blame for the delay squarely at the door of the public authorities involved. That was the basis upon which the proceedings were conducted before this court in that case, and it is the basis upon which the present appeal has been argued. The court has not been invited to find that the delay was in any material respect the fault of Dr Gill. It should also be noted that it was conceded before Allen J, and in this court, that all the facts upon which the Crown proposes to rely in the case against Dr Gill were known to the Department of Health as long ago as 1980. The Crown does not suggest that its decision to charge Dr Gill with manslaughter was based upon new facts which came to light in the Chelmsford Royal Commission. The facts to be relied upon in the prosecution are not materially different from those which, in 1986, were regarded by the Solicitor-General as insufficient to found criminal charges. To put it bluntly, the authorities (treating them collectively) have changed their mind about whether there is sufficient material to lay criminal charges against Dr Gill, and that change has occurred against a background of intense public pressure. This is not to suggest that there is anything improper in the purpose for which the prosecution has been commenced, but it puts into sharper focus the issues that are at stake.

In Gill v Walton, all three members of the Court approached the matter upon the basis that determination of the application for a stay of proceedings in the Medical Tribunal involved a balancing exercise, weighing competing considerations the nature of which will be referred to below. Conformably with that authority, Allen J undertook such an exercise in the present case. However, in argument in the High Court in Walton v Gardiner, on the appeal from the decision in this Court in Gill v Walton, it was argued that the approach which the law required to be taken was a different one. It was upon that point that the majority and minority in the High Court parted company. In the event, the majority, dismissing the appeal, accepted the approach that had been taken in this Court, which was the same as the approach taken in the present case by Allen J. It is appropriate to make reference to what their Honours said on that subject.

The minority view in the High Court was that a permanent stay of proceedings on the ground of abuse of process in a case such as that under consideration should only be granted where one of two circumstances existed; that is to say, where the hearing involved would necessarily be unfair or where the proceedings were brought for an improper purpose.

On the other hand, the majority rejected that approach and espoused a more flexible test. Before repeating what their Honours said about that test it should be emphasised that they made it clear that, as a matter of principle, although there might be material differences between the detailed considerations that arise concerning disciplinary proceedings before a medical tribunal on the one hand and criminal proceedings on the other, the test to be applied was the same. Indeed, their Honours looked at the matter the other way around, formulating the principle to be applied in relation to a stay of criminal proceedings, and then considering whether they were relevantly different in relation to disciplinary proceedings. In that context they made reference to the judgment of Gaudron J in Jago u District Court (NSW) (1989) 168 CLR 23 at 77 where her Honour mentioned two particular considerations that would be of special relevance to an application to stay criminal proceedings. The first was that, having regard to the discretionary power of the Attorney General to commence proceedings, a permanent stay of criminal proceedings should not be exercised on the basis of an opinion that an indictment should not as a matter of discretion have been presented. Secondly, her Honour drew attention to the powers of a trial judge at a criminal trial to guard against unfairness as, for example, by making discretionary decisions to exclude evidence even though it be otherwise admissible. The point is that, recognising that there may be material differences in the application of the test to criminal proceedings as compared with disciplinary proceedings, the general approach to be adopted is the same.

In describing that general approach their Honours said (at 14):

"As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice. "

Their Honours also quoted a passage from the judgment of Deane J in Jago ((1989) 168 CLR 23 at 58) which had been relied upon in this court. It is convenient to repeat that passage:

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed."

The approach taken by Allen J in the exercise of his discretion was in conformity with that adopted by the majority in the High Court. This is hardly surprising, because that was also the approach that had been adopted by all the members of this court, and it was the judgment of this court that Allen J had before him when he came to deal with the matter.

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His Honour considered three kinds of prejudice that had resulted to the respondent from the extreme delay on the part of the authorities. (In that connection he pointed out that the police and the Department of Health had co-operated in investigations into Chelmsford). First, there was what his Honour called evidentiary prejudice. By that he meant the difficulties which the respondent would encounter in defending himself at a trial by reason of events that occurred over the period of the delay. Secondly, there was what his Honour called publicity prejudice, by which he meant the widespread and unfavourable publicity which had been given to practitioners involved with Chelmsford and which would be likely to be well known to any jury. Thirdly there was what his Honour called "objective persecution". That phrase is capable of misunderstanding, and further reference to its meaning will be made below. His Honour expressed the view that if, as was not the case, it were appropriate to consider those three kinds of prejudice separately, the first and third would have justified a stay, but the second would not. However, he rightly observed that the three were to be considered in combination and, undertaking a balancing process of the kind earlier mentioned, he concluded that a stay should be granted. It is convenient to consider the challenges made to the judgment of Allen J by reference successively to the three kinds of prejudice just mentioned.

His Honour found that he was satisfied that the respondent "has sustained grave evidentiary prejudice". It is unnecessary to go into the detail of his reasoning in this respect. It suffices to give two illustrations. First his Honour observed that five witnesses whose evidence or other support might have been of importance to the respondent if he had been tried, for example, in 1981, were now dead. They were Dr Bailey, Dr Sargent (an English practitioner who had engaged in deep sleep therapy), Dr Sinclair (a practitioner from Melbourne who had at one stage expressed an opinion supportive of Dr Bailey), Dr Windon (the anaesthetist who attended to Mr Adams when his emergency arose) and Professor Maddison, a professor of psychiatry who in earlier proceedings had answered interrogaties in a manner arguably favourable to the defence case. Secondly, Allen J pointed out that a good deal might turn upon a detailed recollection of the precise facts and circumstances relating to the condition and treatment of Mr Adams over the days preceding his death, and that records relating to those matters had been lost over time, and nurses and other witnesses were no longer available or their recollections had faded.

In this appeal the Crown made submissions aimed at minimising the significance of the death and unavailability of witnesses. An examination of the reasons for judgment of Allen J shows that his Honour was well aware of the matters relied on by the Crown, and took them into account. It is not always easy to assess the significance of the unavailability of a witness. The late Dr Bailey's present reputation is such that he would be unlikely to be of help as a witness (as distinct from a source of information) now, if he were alive, but if Dr Gill had been prosecuted in, say, 1981 the position may well have been different. Although his reputation is now in tatters, there was a time when Dr Bailey was regarded by some as an impressive and even charismatic figure. As Allen J observed (and this is also relevant to the second ground of prejudice considered below), he was once a well known and professionally successful psychiatrist who had been the Superintendent of one of the State's major mental hospitals.

The appellant also argued that the Crown case would be that the acts and omissions of Dr Gill in relation to the treatment of Mr Adams constituted so gross a departure from proper medical practice that details of the kind mentioned above

could not matter. It is difficult to reconcile this assertion with some aspects of the history of the case, including the opinions of the Government Medical Officer, the coronial reports, and the opinion of Solicitor-General Gaudron in 1986 that there was no case of criminal misconduct against Dr Gill. Furthermore, it is almost self-evident that a professional person who, fifteen or more years later (if the present prosecution proceeded it would be unlikely to come to trial before 1994), is required to justify his conduct, would be at a serious disadvantage by reason of the delay. In my view it was well open to Allen J to find that there would be what he described as gross evidentiary prejudice.

In this connection the position of the respondent is even stronger than his position in Gill v Walton. Proceedings before a medical tribunal would be conducted with a significant degree of evidentiary informality and before a bench including medical experts. They would be able to have put before them, or to take notice of, materials and information that might well not be able to be put before a jury. They would also find it easy to put themselves back into the position concerning medical knowledge as it existed in 1978. I do not overlook the consideration mentioned by Gaudron J in Jago, and referred to above, as to the measure of flexibility that is available to a trial judge at a criminal trial. Even so, it appears to me that the evidentiary prejudice that is relevant to be considered in the present appeal is at least as great as that which was considered in Gill v Walton, and probably even greater.

As to the matter of what Allen J called publicity prejudice, it is undoubtedly the case that it would be impossible to assemble a jury most of whose members had not been exposed to prolonged media denunciation of the respondent and the other doctors connected with Chelmsford. Even if there had been no delay, and no elements of oppression, this case would test to the limit the capacity of the criminal justice system to pass dispassionate judgment upon a person accused of serious crime. However, I am very reluctant to accept that trial by media can ever be allowed to prevent trial by jury, and any jury would be given a strong warning to disregard preconceptions that might have been created by previous publicity. I agree with Allen J that, if this matter stood alone, it would not justify a stay of proceedings, but I also agree that it is something to be taken into account.

During the course of argument on this appeal it was pointed out that the phrase "objective persecution" involves a contradiction in terms.

Allen J made it clear that he was not suggesting that the Director of Public Prosecutions had commenced these proceedings for an improper purpose. I understand his Honour to be referring to what was described by Deane J in Jago, and again by the majority of the High Court in Walton v Gardiner (at p12), as oppression resulting from a multiplicity of charges, over a long period of time, arising out of the one set of events.

The origin of the expression "persecution" in this context is not difficult to find. I have no doubt that it comes from the judgment of McHugh JA in Herron v MacGregor at 257 where, applying words used by Richard CJQB in Re MacPhee and Barristers Society of New Brunswick (1984) 1 DLR (4th) 156 at 163 in a not dissimilar case, his Honour described proceedings against one of the Chelmsford doctors as "tantamount to persecution".

It was argued on behalf of the appellant that the disciplinary charges which had previously been commenced and stayed should not, as it were, be counted in this connection, and that we are here dealing with the first and only criminal charges that have ever been commenced against Dr Gill. Thus, it was said that, even though they were grossly delayed, they could not be said to be oppressive. I find

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it difficult to accept that the jurisdiction that is invoked in a case such as the present can be made to turn upon such a distinction. It is true that there are significant differences between criminal proceedings and proceedings before a medical tribunal, and the considerations to be taken into account in the balancing process described above will be significantly different. Allen Recognised that, and gave due weight to the differences. On the matter of oppression, however, I cannot accept that this Court should disregard the disciplinary proceedings. They are a most material part of the history of the matter and it would be unrealistic to treat them as irrelevant to the respondent's contention that he has been subjected, over the years, to successive attempts by the State authorities to remedy the appalling delay for which the Department of Health has been repeatedly criticise d by various belated attempts to bring the surviving Chelmsford doctors to retribution.

The Crown rightly pointed to the seriousness of the charge of manslaughter, involving as it does the unlawful taking of human life. This is a factor to be taken into account. Allen J recognized that. It should also be remembered, however, that at all material times, loss of life has been at the centre of many of the allegations made again st the Chelmsford doctors. The disciplinary charges against Dr Gill in relation to the treatment of Mr Adams arose out of the death of Mr Adams following that treatment. The criminal charges are very serious; so were the disciplinary charges that were previously stayed.

I see no error of fact or law in the exercise by Allen J of his discretionary judgment in this matter. The appeal should be dismissed with costs.

Mahoney JA Dr Gill has been charged with manslaughter of a patient at the Chelmsford Hospital in 1977. He has applied to the Supreme Court for a permanent stay of the prosecution. Allen J ordered that it be stayed. The Director of Public Prosecutions has appealed to this Court against his Honour's judgment.

In November 1991, this Court stayed disciplinary proceedings pending against Dr Gill before the Medical Tribunal: Gill v Walton (1991) 25 NSWLR 190 (Gleeson CJ and Kirby P, Mahoney JA dissenting). On 29 April 1993 the High Court of Australia dismissed an appeal against that decision (Mason CJ, Deane and Dawson JJ, Brennan and Toohey JJ dissenting). The High Court affirmed the order that the disciplinary proceedings be stayed. Mason CJ, Deane and Dawson JJ said:

"Tt follows from what has been said above that the Department has failed to identify any error of principle or fact affecting the Court of Appeal's decision that the current proceedings in the Tribunal should be permanently stayed. As has been said, that decision was the result of a weighing process involving a subjective balancing of the various factors and considerations supporting or militating against conclusions that a continuation of the proceedings in the Tribunal would be so unfairly and unjustifiably oppressive of the respondents as to constitute an abuse of the Tribunal's process. As the different conclusions reached by Gleeson CJ and Kirby P on the one hand and Mahoney JA on the other indicate, the comparative weight to be given to particular considerations and factors in that weighing process and the ultimate outcome of it involved a substantial element of individual judgment. In our view, the conclusion reached by the majority of the court of Appeal was clearly open in all the circumstances of this quite exceptional case. That being so, and in the absence of identified error of law or fact, it is no part of the function of this Court to repeat that weighing process for the purpose of determining whether it would reach the same

conclusion as that reached by the majority of the Court of Appeal. Indeed, no submission to the contrary was advanced on behalf of the Department."

I have had regard to what was said by the majority of this Court and the majority of the High Court in Gill v Walton. Taking the judgments which their Honours have formed into consideration, I am of the opinion that the present appeal should be dismissed.

I see the crucial issue in this proceeding to be whether Dr Gill is to have a fair trial. If he does not have a fair trial, he stands in danger of being imprisoned for up to twenty-five years: Crimes Act 1900, s24. I do not think that the trial would be fair.

In Gill v Walton I reached the conclusion that the disciplinary proceedings brought against Dr Gill could be dealt with fairly by the Medical Tribunal. Evidence which would have helped him had been lost, by death or otherwise. Recollections had faded or dimmed. And the context in which the issues fell to be judged in 1991 was different from that when in 1977 Dr Gill did what he did. But the facts had been assembled by a Royal Commission and were available to Dr Gill in the disciplinary proceeding. The procedure before the Medical Tribunal could be adapted to ensure that justice was done and that facts which were relevant, for or against Dr Gill, could be taken into account even if they could not be proved in a court of law. The Medical Tribunal had the power to mould its procedure and Dr Gill would not, I think, have been unacceptably prejudiced by the lapse of time or the other matters complained of. But a criminal trial for manslaughter is different. Some facts which could have been taken into account before the Medical Tribunal would not be able to be placed before the jury in a criminAl trial. If and insofar as this be relevant, this prejudice has resulted from the acts or omissions of those in Government at particular times: to this the Chief Justice has referred.

The fairness of any case must be judged according to the context of the case and on the particular facts of it. I am satisfied that, if the matter be judged in accordance with the principles discussed in Gill v Walton, in this Court and in the High Court, the conclusion to be drawn is that the trial of Dr Gill for manslaughter would not be acceptably fair.

Tam conscious that this conclusion may not be understood - at least, it may not be accepted - by those who believe themselves to have been wronged by Chelmsford and by what Dr Gill did there. If their claims be correct - a matter on which I express no opinion - they may feel that the need for punishment requires that there be a trial, even if it be less than just.

The feelings of those who, on this assumption, have been wronged require to be understood. In the High Court, Brennan J, in a different context, said: "In the Court of Appeal, as in Herron v McGregor, their Honours focused their attention on the effect of delay on the position of the medical practitioners against whom the complaints had been made. Their Honours gave less weight to the interests of the public and of the Chelmsford patients listed in the 1991 complaints in having the professional conduct of the respondents investigated by the competent disciplinary Tribunal and, if the conduct were proved to have amounted to professional misconduct, in having that conduct publicly stigmatized as such. When the very purpose of conferring jurisdiction on the Tribunal is to protect the public and particular patients against professional misconduct, it is a curious power which allows the pursuit of that purpose to be aborted in order to protect the interests of medical practitioners who are alleged to have grievously mistreated their patients. To patients who might still be suffering from the

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consequences of the alleged professional misconduct, it might appear to be an odd sort of justice that protects the medical practitioner against the disciplinary power after a lapse of time without relieving the patient of his or her continued suffering."

With respect, I do not differ from his Honour's views. But the present proceeding is a criminal proceeding. It must be fair. The right to a fair trial of a criminal charge is at the heart of any system of justice: in Registrar of the Court of Appeal v John Fairfax Group Ltd (Court of Appeal, 21 April 1993, not yet reported) I recorded my views in this regard and I shall not repeat them. If the gravity of the crime charged is accepted as justification for trying a person unfairly, then the right to a fair trial does not exist. This may place the right to a fair trial above the interests of those who have been injured. In a sense it does. But in great cases - the Chelmsford cases are, in my opinion, such - the good seldom lies wholly on one side. The dissatisfaction of those who have been injured must be balanced against the good which comes from a system of fair trial and the need of the community to maintain it. In my opinion, the law can say no more than that, if there is no fair trial because the crime is great, then every person stands in danger of being imprisoned without a fair trial. That, in my opinion, cannot be accepted.

COUNSEL FOR THE APPELLANT - R N Howie / P Power COUNSEL FOR THE RESPONDENT - P Garling

SOLICITORS FOR THE APPELLANT- S E O 'Connor SOLICITORS FOR THE RESPONDENT - Tress Cocks and Maddox