McDonald (a pseudonym) v The Queen [2016] VSCA 304

1 The applicant, having been found unfit to be tried by a jury, was facing an imminent 'special hearing' under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ('the Act'). He applied to the trial judge for a permanent stay of the indictment. The application was refused.[2] The applicant then sought leave to appeal against the interlocutory judgment refusing that stay. Following the hearing of the application, we granted him leave to appeal, allowed the appeal and permanently stayed the indictment. These are our reasons for those orders on 25 October 2016.

2 The appeal is concerned with whether the trial judge, first, failed to give any or adequate weight to the applicant's cognitive impairment and, secondly, failed to consider the combined effect of that impairment together with the disadvantages arising from the unreasonable delay and whether that combination of factors made the continuation of the proceedings unacceptably unfair.

3 The applicant is 85 years old and suffers from advanced dementia. His conduct, the subject of the charges, is said to have occurred between 1 January 1982 and 30 September 1986. The indictment contains 10 charges of indecent assault contrary to s 44(1) of the Crimes Act 1958, as it then stood, eight charges of gross indecency contrary to s 50(1) of the Crimes Act and one charge of sexual penetration of a child aged between 10 and 16 years contrary to s 48(1) of the Crimes Act. The charges concern two complainants, the first who was aged about 11 years at the time of the alleged offences and the second then being about 14 to 15 years. The complainants' allegations were raised and investigated in October 2014. The applicant was charged on 31 July 2015.

4 On 9 August 2016, pursuant to s 11 of the Act, a jury was empanelled to ascertain whether the applicant was fit to be tried. Expert evidence was given by Professor James Ogloff, a clinical and forensic psychologist, who had assessed the accused on behalf of the prosecution on 4 May 2016, and Mr Martin Jackson, a consulting clinical neuropsychologist, who had assessed the accused on behalf of the defence on 8 December 2015 ('expert evidence').

5 The expert evidence was in substantial unanimity as to the applicant's inability to satisfy six of the seven criteria required for a finding of unfitness to be tried under s 6(1) of the Act due to his advanced dementia and the attendant difficulties with memory, language skills and attention it posed him. The experts concluded that the applicant was:

(i) able to understand the nature of the charges against him;

(ii) unable to enter a plea to the charge or to exercise the right to challenge jurors;

(iii) unable to understand the nature of the trial;

(v) unable to understand the substantial effect of any evidence that may be given in support of the prosecution in this instance; and

(vi) unable to give instructions in any meaningful way to his legal practitioners.

6 The jury unsurprisingly returned a verdict that the applicant was unfit to stand trial.

7 Section 11(4) of the Act prescribes the consequence of a jury making such a finding. It states that:

the judge must -

(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and

(b) if the judge determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.

8 On the basis of the expert evidence, the trial judge ruled that the accused would remain unfit to be tried for at least the next 12 months. In such circumstances s 12(5) provides that the court must proceed to hold a special hearing under pt 3 of the Act within three months. At such a special hearing s 17(1) provides that the jury may make one of three findings. They may find that the accused was not guilty of the offence charged; not guilty because of his mental impairment; or that he committed the offence charged or an offence available as an alternative. If the jury is satisfied beyond reasonable doubt that an accused committed the offence charged, s 18(4) provides that the judge must either declare that he is liable to supervision under pt 5 of the Act, or order him to be released unconditionally. Under a supervision order, an accused may either be committed to custody ('custodial supervision order') or be released subject to certain conditions ('non-custodial supervision order').[3]

9 The three grounds of appeal now relied on by the applicant are as follows:

Ground 1 - The learned trial judge erred in the exercise of his discretion to refuse to permanently stay the special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Ground 2 - The learned trial judge erred in concluding that an exacerbation of a cognitive impairment was required in order to stay a special hearing.

Ground 3 - The learned trial judge erred in giving insufficient weight to:

(i) The effect of the delay on the applicant's ability to remember the contextual facts of the alleged occurrences;

(ii) The effect of the delay on the applicant's ability to participate in this hearing at all;

(iii) The death of the applicant's mother and brother;

(iv) The inability of the applicant to adduce evidence from other boys in the neighbourhood who were said to be present during some of the alleged offending against the complainants;

(v) The likely outcome of these proceedings reducing the public interest in this prosecution.

10 The defence submission before the judge relied primarily on four factors in support of the application that the proceeding should be stayed:

(i) the applicant's age and the permanent and deteriorating nature of his cognitive impairment, as assessed in the expert evidence;

(ii) the delay in prosecuting the proceeding, giving rise to specific prejudice in the form of the loss of documents and witnesses and the inability of the applicant to participate in his defence due to a combination of his cognitive impairment and the delay, and general prejudice as a result of the dulling of memories through the effluxion of time;

(iii) the absence of a public interest in prosecuting the accused;

(iv) the impossibility of holding a fair trial of the accused, producing a fundamental unfairness in the proceedings.

11 It is at this point convenient to set out briefly the principles relating to the exercise of a court's power to permanently stay proceedings on indictment. They are well established. They find expression in Barton v the Queen;[4] Jago v District Court of New South Wales;[5] R v Glennon;[6] and Walton v Gardiner,[7] and have been summarised by this Court on a number of occasions.[8]

12 A permanent stay of a proceeding on indictment is a remedy of last resort, only to be granted in exceptional circumstances.[9] A court may only decline to exercise its jurisdiction where the continuation of the trial of an accused involves fundamental unfairness which is incapable of being overcome by any procedural measures. The interests of the accused cannot be considered without regard to the community's right to expect that persons charged with criminal offences are brought to trial. When a permanent stay is sought, the task of balancing these interests was described in these terms by Mason CJ, Deane and Dawson JJ in Walton v Gardiner:

[T]he 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.[10]

13 Where delay is the sole basis relied upon for a permanent stay, Mason CJ observed in Jago that an accused 'must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute."'[11] The Chief Justice said:

The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.

To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'.[12]

14 A trial will not necessarily become unacceptably unfair because relevant documents, recordings or other kinds of evidence have been lost or destroyed, witnesses have died, or memories have become impaired. The law contemplates that the jury, assisted by appropriate ameliorative directions, may be called upon to determine the issues of fact in such less than desirable circumstances. Accordingly, the commonly occurring disadvantages arising from a long delay between offending conduct and a prosecution are not generally sufficient to result in a grant of a permanent stay of a trial, despite there being some unfairness and forensic disadvantage. For example in R v ALP,[13] the applicant was convicted of offences that had occurred approximately 40 years earlier, the applicant being 78 years of age at the time of the appeal. The applicant unsuccessfully appealed against a refusal to grant a stay of the proceedings. Eames JA (with whom Chernov JA and O'Bryan AJA agreed) said:

This was plainly a case which was at the outer limits of acceptable delay between the events and their prosecution. Her Honour noted, however, that despite his age the applicant did not assert or suggest that he had a poor memory as to events and was thereby hampered in that way in defending himself. His defence was, in fact, one of emphatic denial that any of the events occurred, at all, as the daughters had suggested.

[Counsel for the applicant] conceded that mere delay, even for 40 years as in this case, was not of itself sufficient to require a permanent stay but that it was necessary for him to demonstrate prejudice which had been suffered on account of the delay.[14]

15 Similarly, in Hermanus (a pseudonym) v The Queen,[15] the applicant was unsuccessful in seeking leave to appeal against a refusal to grant a stay on offences that were nearly 40 years' old. Priest JA (with whom Maxwell P agreed) said:

The law contemplates ... that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage. So much underpinned the High Court's reasoning in Longman and so much must underpin the Legislature's provision for forensic disadvantage warnings, as provided for in s 61 of the Crimes Act 1958 and s 165B of the Evidence Act 2008.[16]

16 Another example is R v FJL,[17] in which the Crown successfully appealed against an order permanently staying an indictment for offences that occurred between 32 and 38 years earlier. Osborn JA, with whom Redlich JA and Sifris AJA agreed, held that, whilst the trial judge was correct to conclude that it was necessary to stay one of the counts in respect of which specific evidentiary prejudice could be identified, the forensic disadvantage could otherwise be adequately guarded against by a combination of measures such as excluding evidence of uncharged acts and giving a forensic disadvantage direction. The applicable principles were fully explored in the reasons of Osborn JA and have been the subject of further comprehensive discussion in the reasons of Priest JA in Bauer v The Queen.[18]

17 Implicit in the reasoning of the cases in which a stay application in the context of historic sexual offences has been refused is the assumption that notwithstanding the difficulties arising from the effluxion of time, the accused will ordinarily remain able to make a contribution to the challenging of the accusations made against him, whether by instructions to counsel or by giving evidence.

18 In this case, the judge first considered how he should deal with the applicant's mental impairment. The judge relied heavily upon the decision of the High Court in Subramaniam v The Queen,[19] and concluded that, as the applicant was unfit to be tried and a special hearing was required, the applicant's mental infirmity and cognitive impairment could not provide a basis for a stay of a special hearing.

19 In Subramaniam, the Full Court of the High Court set out in its reasons, the considerations relevant to the grant of a stay of a special hearing under the Mental Health (Criminal Procedure) Act 1990 (NSW). They observed that the principles relating to a stay of proceedings, as discussed in Barton, Jago and Walton v Gardiner, were not in dispute. The Court said that the categories of factual situations which may give rise to a possibility of abuse of process are not closed and that amongst examples of unacceptable unfairness may be unreasonable delay.

20 Subramaniam had been found unfit to be tried by virtue of an adjustment disorder with anxiety and depressive features. Her mental health was said to prevent her from being able to give reliable testimony. It was further contended that the prosecution of the special hearing would result in a serious worsening of her current mental health. Importantly, the appellant relied solely on the fact of her deteriorating mental health as the basis for seeking a stay of the special hearing.[20] The Court said:

One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a 'limiting term' of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the state Attorney-General, provides reason to construe and apply the Act otherwise than according to its tenor.

No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves.[21]

The possibility of the continuing deterioration of the appellant's mental health and any potential that the trial might have for its aggravation did not therefore, in the circumstances of this case, provide sufficient reason for the grant of a permanent stay. The primary judge has not been shown to have failed to weigh and give effect to relevant factors of the kind to which Mason CJ, Deane and Dawson JJ referred to in Walton:

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.

We are not persuaded therefore that the primary judge erred in holding that the appellant's mental condition, or even the chances of its deterioration however caused, warranted the grant of the stay, and that the majority in the intermediate court erred in relation to that holding. The holding of the primary judge was essentially a factual one and included a discretionary component. His Honour's position was that it was in everyone's interests, including the appellant's that the trial proceed as quickly as possible.

The ground of appeal relating to the stay should therefore be rejected. This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave.[22]

22 Critical to the decision was the fact that the only ground relied upon to justify a stay was the appellant's mental incapacity and the assertion that the hearing would cause it to worsen. No other grounds were advanced as to why there would be unacceptable unfairness, constituting an abuse of process if the special hearing proceeded. The trial judge in this case placed reliance upon the italicised portion of the last paragraph which we have set out. The passage must be read in its context having regard to the grounds of appeal. The above passage recognised that where a stay is sought on the basis of an accused's mental infirmity, a stay may in rare cases be justified where it is found that the hearing would further exacerbate the accused's mental infirmity. The Court also recognised that there was nothing in the statute that precluded the accused's right to seek a stay.

23 In this case the trial judge found that the medical evidence did not substantiate that the special hearing process would be a distressing process for the applicant or that it would in any way be likely to exacerbate or accelerate the level of his dementia-related incapacity.[23]

24 The applicant's grounds of the appeal sought a stay of the special hearing but the nature of the argument advanced by the applicant before the trial judge and on appeal made it plain that it was a stay of the indictment that was sought. In his ruling, the judge distinguished between an application to stay the indictment and a stay of the special hearing. While his Honour first stated that his determination was sought 'as to an application made to stay the charges brought against him',[24] his Honour thereafter viewed the application as a stay of the special hearing and refused the application for the reasons above recited from Subramaniam.

25 At the commencement of the hearing in this Court, there was some discussion as to whether it was a stay of the special hearing or the indictment that had been in issue. Following some discussion between the parties, the Court was informed that the issue was whether 'a permanent stay of the indictment or the proceeding, in the context of a special hearing, should be granted.' It was submitted by senior counsel for the respondent that it should make no difference whether the issue is described as a stay of the indictment or the special hearing as the proceeding would only continue by way of special hearing. Furthermore, it was said that the relevant matters to be considered were the same and would produce the same conclusion. For reasons that follow we consider that submission to be correct, but the trial judge did not approach his task in that way.

26 The trial judge attached considerable significance to the distinction between an application to stay a special hearing and an application to stay the indictment. He distinguished the primary authority relied upon by defence counsel in favour of a stay, R v Littler,[25] on the basis that 'the question which arose for the Court in that case was whether a criminal trial should be stayed and not whether a special hearing should be stayed.'[26]

27 In Littler the applicant's mental state proved to be a decisive additional factor in the New South Wales Court of Criminal Appeal's decision to set aside the trial judge's refusal to permanently stay the proceeding on indictment. The appellant was aged 74 years and presented with poor health and memory difficulties. The alleged offending concerned sexual misconduct against two boys, the events being said to have taken place some 38 to 46 years prior to the date of trial. In determining the question as to whether the trial in the proceeding would involve 'such oppressive unfairness, incapable of being overcome, that it would be an abuse of process',[27] Adams J, with whom Hodgson JA and Greg James J agreed, identified three main classes of relevant prejudice:

(i) the unavailability of numerous potential witnesses who were dead, demented or unable to be identified;

(ii) the effect of delay upon the applicant's ability to remember with reasonable reliability the contextual facts of the alleged occurrences;

(iii) the psychological, psychiatric and medical presentation of the accused.

28 Adams J found that the primary judge had erred in the approach he took to the medical evidence of impairment to the applicant's memory. He concluded that directions could not be cast in terms adequate to deal with the difficulties resulting from delay, the absence of relevant evidence, the possibility of the loss of potential witnesses, and the health and psychological condition of the appellant. He said:

[T]he medical evidence dealing with the difficulties faced by the applicant in giving evidence itself is all one way, except as to whether the demonstrated brain damage was a contributing factor. The ability to give evidence coherently and fluently, without substantial hesitation and qualifications, to remember the evidence previously given in the trial by other witnesses as well as one's own testimony, quickly understand questions asked both in examination-in-chief and cross-examination and formulate responsive and consistent answers are all vital to an accused. In all of this, concentration and short-term memory are crucial. Juries are quick to see hesitation as playing for time, qualifications as lack of candour, and inconsistencies as proof of fabrication. It is very difficult to dispel the negative impression these factors may create, entirely unfairly though this might be. This will not necessarily mean that the trial will be unfair, let alone that it should be stayed, but, where it results from or is connected with a substantial delay not due to the accused, it must be considered, together with the other substantial prejudicial circumstances to which I have referred, in determining whether a stay ought be granted. These problems are not merely cumulative, but each multiplies the significance of the others.[28]

29 Adams J emphasised the difficulty arising from the combination of the delay and the applicant's personal circumstances:

The learned trial judge accepted that the applicant's cardiac condition, depression and distress would be greater than is suffered by many persons who face trial under physical and mental difficulties but concluded that this was neither unfair nor oppressive to him. However, this was not a separate issue unrelated to the identified problems caused by the unusual, indeed unique, delay in prosecuting him. ...

With respect to his Honour, the 'difficulties and handicaps' faced by the applicant in this case went much further than the merely 'practical'. Nor will directions confined to the consequences of delay be adequate. So far as lack of complaint is concerned, the evidence of the complainants is that they told, in one case, the police and, in the other, a parent. The difficulty is that, having regard to the delay in making the complaints that led to the applicant's being charged, neither verification nor refutation is now possible.[29]

30 The trial judge in this case considered that the emphasis in Littler upon the applicant's inability to remember the contextual facts, or give cohesive evidence and follow the proceeding, were persuasive factors in support of a stay of the criminal trial but that those factors were inapposite in a case such as the present.

31 His Honour observed that there was no Victorian authority dealing with the issue of whether an accused's unfitness to be tried pursuant to s 6 of the Act was a relevant consideration 'in deciding an application to stay a special hearing'.[30]

32 The trial judge identified the issue that fell to be determined in these terms:

not whether a criminal trial should be stayed because the accused does not present with the mental capacity to meet the basic requirements to ensure he receives a fair and just trial so as to give rise to an abuse of process; but ... whether a special hearing, which is to be convened by reason of the presentation by the accused with the significant incapacities with which he suffers, should be stayed because a failure to do so would result in an abuse of the special hearing process to the degree described by the High Court in Jago v District Court of New South Wales.[31]

It follows that questions of fairness and oppression and the like must be assessed in this instance against the background and within the context of the special hearing framework which:

(i) presupposes that the accused would not receive a fair orthodox criminal trial; and

(ii) assumes that the capacity of the accused to defend himself within the special hearing process is seriously compromised by reason of the presence of his incapacities but that notwithstanding these factors has authorised that a special hearing take place.

In my opinion the legislative intent and purposes behind a special hearing would be seriously undermined if the presence of the incapacities of the accused which would lead to an orthodox criminal trial being stayed would necessarily lead to a special hearing being stayed.

Such an approach would invariably result in many special hearings being stayed and would in my opinion undermine the operation of, and compromise the efficiency of, the provisions of the Act which establish the special hearing process.[32]

33 The trial judge acknowledged that the applicant relied heavily upon the prejudice flowing from his mental impairment,[33] and in particular the inability of the applicant to 'participate in his defence at all' due to his cognitive impairment.'[34] The applicant could neither understand the proceedings nor provide any instructions to his counsel. The trial judge however assessed the questions of fairness and oppression against the background of the special hearing framework which presupposed that an accused could not defend himself to the same degree as in an ordinary criminal trial.

I am satisfied that the approach to the analysis adopted by the New South Wales Court of Criminal Appeal in Littler, insofar as prejudice arose by reason of the unavailability of potential witnesses is instructive in the task required of me.

...I am satisfied that I should not adopt the approach taken by the Court in that instance in applying determinative weight to the second and third categories of potential prejudice[35] as identified by the court, given that the application in this instance is to stay a special hearing, the access to which is based upon the finding of a jury that the accused does not have the capacities which form the basis of each of those two categories.

In my opinion, for the reasons previously described, I am satisfied that in determining the issue as to whether the special hearing should be stayed in this instance, I should weigh the relevance of the accused's incapacities in the manner which I have previously described giving due weight to the fact that the significance of those incapacities has been taken into account in the process under the Act which has resulted in the accused being now exposed not to a criminal trial but a special hearing to allow a determination as to whether the accused was guilty of; or did not commit the charged offences notwithstanding his inability to understand the nature of the trial or to follow the course of the trial or to understand the substantial effect of any evidence or to give instructions to his legal practitioner.

For the reasons set out above I am satisfied that in deciding whether there should be a stay of this proceeding, I should do so adopting the approach to which I have referred above to the loss by the accused of the various capacities listed in s 6(1) of the Act and should otherwise decide the application on the basis of the general principles applicable to an application to stay a criminal proceeding; and that my adoption of the above approach to my analysis is consistent with the statement by the Court in Subramaniam.[36]

35 The second and third categories of potential prejudice in Littler to which his Honour declined to give determinative weight were the effect of delay on the applicant's memory and his mental infirmities.[37] We have set out the manner in which he intended to weigh and approach the applicant's incapacities in the passage of his Honour's reasons at [32] above.

36 The judge also observed that the serious nature of the charges and the youth of the complainants at the time of the alleged offending gave rise to a significant public interest in prosecuting the offences.[38] Relying upon Subramaniam, he identified a public interest in the ameliorative nature of the opportunity given to an accused of being acquitted via a special hearing and the benefit afforded to victims in seeing that a form of justice, though necessarily imperfect, had nevertheless been done.[39] He rejected the applicant's submission that any weight should be attached to the prospect that, in the event of an adverse finding at the special hearing, the outcome would likely either be the imposition of a supervision order or unconditional release so that little public interest lay in the prosecution of the applicant.[40]

37 It is evident that his Honour considered that the applicant's mental infirmities had already been taken account of in the process of a special hearing under the Act and that the approach that he was required to adopt meant that they should not be given the weight that would otherwise have been required on a stay of the indictment. It is unnecessary to determine whether his Honour put aside the applicant's infirmities altogether as a relevant factor, or gave them reduced weight.

38 His Honour then turned to the identified sources of prejudice arising from delay in the prosecution of the alleged offences. No complaint is made as to the manner in which his Honour addressed these specific forensic disadvantages. Only brief reference need be made to those matters. First the judge examined the explanation for the delay of some 30 years in prosecuting the applicant, finding it was attributable to reluctance of child victims of sexual assaults to come forward and report offending conduct. He found that, as the prosecution was not responsible for the delay, the mere delay did not provide a basis for a permanent stay.[41]

39 It was not suggested before his Honour that the reluctance of the complainants to come forward at an earlier time diminished their right or interest in having the proceedings continue or that the delay of itself constituted any barrier to the prosecution of the applicant. The complainants' interest in having the opportunity to have their allegations vindicated by the criminal process and achieve some measure of closure were most important considerations, no matter how imperfect the process of a special hearing may have been.

40 Second, the judge addressed the loss of witnesses and evidence. The applicant relied upon the death of his older brother as a source of potential prejudice. The accused's brother had been the sole occupant of a caravan, and regularly used a garage as his workshop, those being possible locations where some of the offending conduct, the subject of the charges, was alleged to have occurred. The judge accepted that some potential prejudice to the accused flowed as a result but considered that prejudice was mitigated to some degree by the fact that the applicant's sister could give some evidence as to the applicant's degree of access to the caravan and the applicant's brother's use of the garage.[42] Similarly, the judge accepted that some potential prejudice arose by virtue of the death of the applicant's mother, she having been confined to the house in which some of the offending was alleged to have taken place. But the judge found that the reliability of her evidence was in doubt because she suffered from Alzheimer's disease and that it could not be said that her evidence would have necessarily excluded the occurrence of the alleged offending within the house.[43]

41 The applicant relied upon his loss of employment records as to his whereabouts at critical times. He further contended that he was now unable to adduce evidence from other boys in the neighbourhood who were, according to the evidence to be led, present during the offending against one of the complainants. Finally, the applicant relied upon the presumptive prejudice caused by the passage of time and its effects on memory. As to all of these factors, the judge expressed his lack of satisfaction that the potential prejudice could not be ameliorated to a significant degree by appropriate directions.[44]

42 The applicant accepted that, had he relied only on these disadvantages, it would have been open to his Honour to refuse to take the extreme step of staying the proceedings. But, as the written submissions of the applicant before the trial judge made clear, the applicant relied heavily upon his severe cognitive impairment and the combination of the factors of delay together with his mental infirmity as warranting a stay.

43 The applicant contends that the judge's approach to the question of the stay was too narrow. He submits the judge had erred in putting aside the applicant's mental infirmity, his inability to follow the proceedings or provide any instructions and the likely order that would be made at the end of the special hearing. These were relevant factors that had to be considered in conjunction with the prejudices identified by the applicant which more commonly arise from delay and which the judge addressed. The applicant's severe cognitive impairment and consequent inability to mount any defence were critical additional considerations which had to be considered in conjunction with those other disadvantages arising from delay. It was submitted that the approach adopted by his Honour resulted in a failure to give any or sufficient weight to the applicant's mental infirmity or the effect of that factor in combination with the factors arising from delay.

44 There is always a public interest in having a formal determination of the guilt or innocence of a person in a special hearing. It serves to maintain public confidence in the administration of justice and, as we have said, provides an opportunity for the complainants to be vindicated regardless of the fact that an accused's mental state may be such that they could play no meaningful role in the proceeding. The respondent rightly conceded however that it was relevant to have regard to the likely outcome of the proceeding if he were found to have committed the offences. In this regard his Honour erred in putting the likely outcome of the hearing aside. The applicant would not be an appropriate vehicle for the application of the principle of general deterrence given his mental impairment. It was accepted by both parties that protection of the community and specific deterrence were of no relevance given the age and mental state of the applicant. He posed no risk to the community. It was highly unlikely that any form of supervision order would be visited upon him. Rather his unconditional discharge would be highly likely. In those circumstances the public interest in the proceeding was more limited. It lay only in the disposition of the charges for serious offences.

45 In our opinion the nature and extent of the applicant's mental infirmity and its consequences constituted important factors bearing upon the question of unacceptable unfairness. It is unnecessary that we consider whether there is a meaningful distinction to be drawn between a stay of the indictment and a special hearing. In either event the applicant's mental infirmities had to be given their full weight. The authority of Subramaniam did not require that mental infirmity which rendered the applicant unfit to be tried be treated as irrelevant or of marginal relevance to an application for a stay; only that, given the purpose of the special hearing, it would be a rare case where mental infirmity alone could support the grant of a stay.

46 Although his Honour at one point in his reasons appeared to acknowledge that mental infirmity giving rise to a special hearing may in combination with other factors justify a stay,[45] no such analysis was undertaken. His Honour was required to consider whether the combined circumstances of the applicant's mental infirmities and the disadvantages arising from the delay were productive of unacceptable unfairness and whether, having regard to the likely outcome of the special hearing there remained a sufficient public interest in the proceedings continuing. The trial judge therefore erred in his approach to the applicant's mental infirmity as something that had been taken into account in proceeding by way of special hearing. His Honour also erred in his assessment of the public interest.

47 With the exception of Littler, no other case was cited by the parties which involved the constellation of features upon which the applicant relied.[46] Whether or not there is a distinction between a stay of a special hearing which if granted would leave the indictment in limbo and a stay of the indictment, the reasoning in Littler remained highly apposite. The presence of very lengthy delay, loss of evidence and witnesses, and the degree of cognitive impairment of the applicant constituted a combination of circumstances which in our respectful opinion compelled the conclusion that there was no sufficient public interest remaining that necessitated the continuance of the proceeding. The oppressive unfairness arising from this combination of factors could not be acceptably ameliorated by the adoption of procedural measures such as the giving of a forensic disadvantage direction or caution to the jury. As the Court concluded in Littler, directions could not be framed which could overcome the difficulties exposed by the combination of the factors arising from delay and the mental condition of the accused.

48 This unusual combination of factors and the diminished public interest in the proceeding should have led to the stay of the proceedings. To proceed with a special hearing of the applicant would involve incurable, oppressive and unacceptable unfairness of such an order as to constitute an abuse of process, whether of the special hearing or the indictment.

49 It was for these reasons that we made an order staying the indictment.

50 I have had the advantage of reading in draft the reasons of Redlich JA and Beale AJA. As they have observed, the respondent conceded that the judge had not taken into account a relevant matter. Consequently, the discretion as to whether there should be a stay must be re-exercised.

51 The Act sets out a regime for proceeding against persons who are unfit to be tried. As the High Court observed in Subramaniam, the special hearing procedure has its deficiencies. Nevertheless, it does offer a method for quelling controversy as to whether an offence has been committed. In this way, the special hearing procedure serves an accused, complainants and the broader community. The accused has the opportunity of being acquitted and freed from the taint of serious criminal allegations. The possibility of a guilty verdict offers complainants the prospect of a public acknowledgement and acceptance that what they alleged happened to them did happen. Imperfect as it may be, the special hearing procedure also serves the very important public purpose of ensuring that charges for serious offences are prosecuted and determined. In this regard the High Court in Dupas v The Queen[47] observed:

A further consideration is the need to take into account the substantial public interest of the community in having those who are charged with criminal offences brought to trial, the 'social imperative' as Nettle JA called it, as a permanent stay is tantamount to a continuing immunity from prosecution. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed.[48]

52 The applicant's mental impairment is a factor to take into account in assessing whether there would be fundamental unfairness to him if the proceeding on indictment proceeded through a special hearing. In my opinion, however, it is important to bear in mind that the legislature has seen fit to establish the special hearing procedure (with all its limitations) to apply to persons suffering from such impairments. Consequently, I do not think it appropriate to accord the applicant's mental impairment such weight as might have been attributed to it absent the Act and the procedure which it establishes.

53 In passing I would note that I do not find R v Littler[49] of great assistance. The court there was considering whether charges on indictment should be stayed permanently. If they were not stayed, then the matter would proceed to trial. If found guilty, the accused would have faced the appropriate sentence flowing from conviction taking into account relevant sentencing considerations. There was no issue in the proceeding as to whether the accused was unfit to stand trial, although some of the medical evidence was against the view that he was unfit. Consequently, when the court was considering a stay, it was not doing so in the context of the procedures that apply when a person is not fit to stand trial. The court did not have to consider the level of unfairness to the accused through the prism of legislation that operates when a person has a mental impairment and does so by introducing a special hearing procedure in place of a trial. To my mind, this renders what is said in R v Littler of little assistance. It stands in contrast to Subramaniam which sets out the principles that apply to stays in the context of legislation the equivalent of the Act.

54 Returning to the matters to be taken into account in this case, the likelihood that, if convicted, the applicant would be released unconditionally does not weigh heavily in the balance albeit that it is a relevant consideration. Unconditional release is simply one of the possible outcomes under the Act. It does not lessen the very important public interest in seeing charges for serious offences prosecuted and determined. So too, if the applicant were to be convicted, yet released unconditionally, the complainants would nevertheless be vindicated, at least to some degree. It may also bring some closure for them.

55 Other factors relevant to consideration of fundamental unfairness result from the passage of time since the offences were allegedly committed. These matters were dealt with by the judge and are summarised by Redlich JA and Beale AJA above.[50] As the judge observed, the delay in reporting by the complainants was explicable. Following reporting, there was no relevant delay by the prosecution. The loss of witnesses and other evidence is to some degree prejudicial to the applicant. To that must be added the presumptive prejudice which arises from the events which are the subject of the alleged offences having taken place so long ago. Appropriate directions could be given to ameliorate the potential prejudice to the applicant.

56 Finally, any adverse effect of the special hearing on the applicant's health must also be considered. Prosecution of a special hearing may in some circumstances be an instrument of oppression. The judge was not satisfied that the special hearing process would be distressing for the applicant or that it would be likely to exacerbate or accelerate the level of his dementia-related incapacity.[51] That finding is not challenged.

57 Weighing all of these factors together, in my opinion, a stay should not be granted. There will not be a fundamental defect in the special hearing of such a nature that nothing can be done by a trial judge to relieve against its unfair consequences.[52] It is not a rare case in the requisite sense as described in Dupas:

Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle..., the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.'[53]

58 The context in which the assessment of fundamental unfairness to the applicant must be undertaken is one which includes legislative procedures and outcomes addressing what is to happen when the accused suffers from mental impairment to such an extent that he is unfit to stand trial. That context has the effect of reducing the influence that the applicant's mental impairment might otherwise have had in determining whether in all of the circumstances, fundamental unfairness is established.

[1] To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] DPP v [McDonald] (Unreported, County Court of Victoria, Judge Saccardo, 19 August 2016) ('Ruling').

[4] [1980] HCA 48; (1980) 147 CLR 75, 111 ('Barton').

[5] [1989] HCA 46; (1989) 168 CLR 23 ('Jago').

[6] [1992] HCA 16; (1992) 173 CLR 592, 605.

[8] See, eg, R v FJL (2014) 41 VR 572 ('FJL'); Bauer (a pseudonym) v The Queen (2015) 46 VR 382 ('Bauer').

[9] Jago [1989] HCA 46; (1989) 168 CLR 23, 31 (Mason CJ), 49-50 (Brennan J), 56-60 (Deane J), 76 (Gaudron J); FJL (2014) 41 VR 572, 575 [18].

[11] Jago [1989] HCA 46; (1989) 168 CLR 23, 34 (citations omitted).

[13] [2002] VSCA 210.

[14] Ibid [38]-[39] (citations omitted).

[15] (2015) 44 VR 335.

[16] Ibid 344 [44] (citations omitted).

[17] (2014) 41 VR 572.

[18] [2015] VSCA 55.

[19] (2004) 211 ALR 1 ('Subramaniam').

[21] Ibid 10 [28]-[29] (citations omitted) (emphasis in original).

[22] Ibid 10-11 [33]-[35] (citations omitted) (emphasis added).

[25] [2001] NSWCCA 173; (2001) 120 A Crim R 512 ('Littler').

[27] Littler [2001] NSWCCA 173; (2001) 120 A Crim R 512, 513 [5].

[35] See [28] above.

[36] Ibid [23]-[25] (emphasis added).

[37] See [27] above.

[46] Ross v Tran (1996) 87 A Crim R 144 (Nathan J) was a case where the offender's mental capacity when combined with delay was found to support a permanent stay.

[47] [2010] HCA 20; (2010) 241 CLR 237 ('Dupas').

[48] Ibid 251 [37] (footnotes omitted).

[49] [2001] NSWCCA 173; (2001) 120 A Crim R 512.

1. [52] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 111 (Wilson J) quoted in Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ); R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 605 (Mason CJ, Toohey J); Dupas [2010] HCA 20; (2010) 241 CLR 237, 250 [35].

[53] Dupas [2010] HCA 20; (2010) 241 CLR 237, 250 [35].