Patsantzopoulos by his tutor Naumov v Burrows

Court of Appeal (NSW)|2023-04-17|Before: Ward P, Leeming JA, Adamson JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

JUDGMENT

WARD P: I agree with Leeming JA.
LEEMING JA: The applicant, Mr Dimitrios Patsantzopoulos who appears by his tutor, seeks leave to appeal from the dismissal by the District Court of his application for a permanent stay of civil proceedings brought by the respondent, Ms Lauren Burrows. She alleges that he assaulted her, including sexual assault, over a two year period in around 1990 when he was in a relationship with her mother. He is now aged 88. She is 38 but at the times in question she was a young girl around 7 or 8 years old. Her proceedings would in all likelihood have been statute-barred until the enactment of s 6A of the Limitation Act 1969 (NSW). There was a concurrent hearing of the application for leave to appeal and the appeal itself. For the reasons which follow, I have concluded that leave to appeal should be granted but that, although the discretion exercised by the primary judge miscarried, the appeal should nonetheless be dismissed.

Background

The respondent was a complainant in criminal proceedings brought by the Crown against the applicant on an indictment containing 13 counts. The first 12 counts on the indictment involved different complainants, and included charges of what would now be counts of sexual intercourse without consent with a person under the age of 16. The 13th count was a charge that the applicant had assaulted the respondent and at the time of the assault committed an act of indecency while she was a child under the age of ten, contrary to what (prior to March 1991) was an offence under s 61E(1) of the Crimes Act 1900 (NSW).
The other complainants cannot be named or otherwise identified, by reason of s 578A of the Crimes Act. Ms Burrows' name appears on the proceedings commenced by her in the District Court, and in the interlocutory judgment in her favour (which is published on Caselaw), and during the hearing in this Court she gave explicit instructions that she did not object to her name appearing on the judgment. The result is that the section does not apply in relation to her: s 578A(4)(b).
The respondent says that her parents separated when she was aged around six. She remained in the care of her mother, who formed a relationship with the applicant. The assaults occurred during the approximately two year period over which that relationship lasted.
The respondent says that she moved out of her home some years later, when she was 16, because her mother was suffering from serious mental illness which caused her to abuse alcohol. She lived with an elderly couple who attended her church, and completed her HSC and obtained tertiary qualifications.
It seems that in large measure the respondent ceased to have contact with the applicant, except that in 2007 she walked into the applicant's barber shop where she told a customer "excuse me, if I was you I wouldn't come back here again because that man is a child molester" and told the applicant "you should be in gaol". Some 12 weeks later, she says that she began to feel guilty at how she had acted, and wrote the respondent a letter apologising to him for how she had acted and telling him that she forgave him for what he had done to her. She says that she handed that letter to the applicant at his shop.
The respondent first reported the incidents to NSW Police in October 2013. The other complainants made reports in 2016, and in May 2017, the applicant was arrested and charged, inter alia, with the assault upon the respondent.
In October 2018, the District Court determined that the applicant was unfit to be tried in criminal proceedings, following which he was referred to the Mental Health Review Tribunal, which, on 15 February 2019 determined that he was presently unfit and would not become fit to be tried within 12 months. A special hearing thereafter took place in the District Court under the (former) Mental Health (Forensic Provisions) Act 1990 (NSW), which resulted on 6 November 2020 in verdicts, pursuant to s 22(1)(c) of that Act, that on the limited evidence available, the applicant had committed the majority of the charges, including count 13.
On 18 June 2021, the Court imposed a "limiting term" for a period of three years, during which time the applicant has been detained as a forensic patient. Section 22(3)(a) provided that the verdict constituted "a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates". Accordingly, although the limiting term has not expired, the applicant does not require leave pursuant to s 4 of the Felons (Civil Proceedings) Act 1984 (NSW).
Following the verdicts, the respondent commenced civil proceedings in the District Court in April 2021. Her action is for trespass to the person. The assaults which give rise to her claims are pleaded as follows: 7. Whilst at the house, the defendant made the plaintiff sit on his lap, touched the plaintiff all over her body and open mouthed kissed the plaintiff and put his tongue inside the plaintiff's mouth. 8. During the following twenty-four-month period, the defendant on multiple occasions, at the home of the plaintiff, did: a. Touch the plaintiff's body; b. Kiss the plaintiff; c. Put his tongue inside the plaintiff's mouth; d. Enter the bathroom when the plaintiff was showering.
The respondent says that she suffers from the abuse inflicted by the respondent to this day, and that she has been diagnosed with a number of mental illnesses. She seeks damages including aggravated and exemplary damages. No defence has been filed.

The dismissal of the application for a permanent stay and the appeal to this Court

By notice of motion filed on 4 October 2021, the applicant moved for a permanent stay. The application was heard by the primary judge on 21 September 2022 (the reasons for the delay are not apparent from the materials made available to this Court). By a reserved judgment delivered, promptly, on 4 October 2022, his Honour rejected the application: Burrows v Patsantzopoulos [2022] NSWDC 442.
It is not necessary to summarise his Honour's reasons. It is convenient to deal first with proposed ground 2, because although no concession was made, it is the stronger of the two proposed grounds by a considerable margin, and indeed the respondent came close to acknowledging the difficulties she faced in defending it.

Proposed ground 2

Proposed ground 2 was to the effect that the primary judge: erred by failing to take into account a material consideration, namely, the extent to which the incoherence of (a) a finding that the applicant did not meet the minimum standards for a fair trial in criminal proceedings, and (b) a finding that the applicant can obtain a fair trial in civil proceedings involving identical factual allegations, would bring the administration of justice into disrepute.
This ground was directed to the incongruity of the finding by the District Court that the applicant was unfit to stand criminal trial with the availability of civil proceedings based on the same allegations against him if no permanent stay were granted. As elaborated orally, the submission traced the history of legislative measures, culminating in the Mental Health (Forensic Provisions) Act, so as to permit something analogous to criminal proceedings being prosecuted against accused persons with cognitive impairment. It was said that there were no equivalent legislative provisions applicable to civil claims, such that the fact of the special hearing and its outcome should be put to one side for the purposes of addressing the alleged incoherence.
The submission had been made in writing before the primary judge, and may have well been addressed orally (no transcript was made available to this Court). The written submission referred to Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [108]-[109] where Bell P said: 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" (see Rivkin at [97] above) 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. In my opinion, the primary judge erred in dismissing the relevance of Presser out of hand. It provides powerful insight into matters going to the very essence of a fair trial, including the ability to give instructions, to decide what defence will be relied on, and to make the defendant's version of facts known to the court and his counsel.
In this Court, the applicant also relied on what had been said, more recently, by Garling J in BRJ v The Corporate Trustees of The Diocese of Grafton [2022] NSWSC 1077 at [115] when granting a permanent stay: It would be a surprising finding that a civil hearing would not be unfair when dealing with an allegation of sexual abuse, but that a criminal trial for a similar allegation could not proceed because it was unfair in the circumstances here where the unfairness arises because, by reason of his diminished mental capacity, a party cannot understand or give instructions for the conduct of a trial.
Neither in Moubarak nor BRJ had there been any confrontation with the allegations of historic sexual assault while the relevant person had full cognitive capacity, a matter which was regarded as significant by all members of the Court of Appeal (at [163], [188] and [196], [207]) and by Garling J (at [113]).
Returning to the application for a permanent stay heard and determined by the primary judge, the submission was summarised by his Honour at [28(e)], but was not otherwise addressed in his reasons. There is no doubt that the submission was a material one. There is no doubt that if his Honour had failed to have regard to it, that would amount to the failure to take into account some material consideration and engage the principles restricting review identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. Thus it was that Mr Barry KC, who appeared in this Court but not below, was driven to submit that although it had not been addressed explicitly, on a fair reading of the reasons as a whole, this Court should find that implicitly the submission had been addressed and rejected. It was said: In our submission it is not necessary for the judge to write a separate section of the report saying, "Although coherence was raised by the plaintiff and I reject it". It was not necessary for his Honour to make any determination on that question because it really is the subject of what he was deciding. The fact that there was an inconsistency between being unfit for plea and finding of a fair trial doesn't mean the latter couldn't occur.
I am unpersuaded that any such inference should be drawn. This is not a case where a judge gives reasons which explicitly or implicitly pick up a major argument advanced by the applicant. The judge's reasons are quite extensive, and paragraphs [29]-[56] summarise the respondent's submissions at length. His Honour also summarised at [66]-[69] submissions of the respondent with which he did not agree. In contrast, the applicant's submissions are summarised in a single paragraph.
Moreover, this is not merely a case of an inexplicable failure to have regard to a substantial submission. To the contrary, there is an explanation for the omission, the plausibility of which I did not understand to be disputed at the Bar table. What appears to have happened is that the respondent had herself pointed to what was said to be an "incoherence" in any permanent stay, such as was sought by the applicant, with the qualified verdict which issued from the District Court following the special hearing. The primary judge addressed that submission and addressed it in some detail, calling it "the Coherence Argument", and rejected it. However, his Honour never returned to the original submission based on coherence which had been made by the applicant.
This ground is made out. It is necessary to re-exercise the discretion.

Proposed ground 1

In light of the above, nothing turns on the first proposed ground of appeal, which may be addressed concisely. I would not accept that it is made out.
This ground asserted that the primary judge had erred in principle in so far as his Honour had applied the decision in Chalmers v Leslie [2020] QSC 343 at [25] as though it contained the relevant principles of law, whereas in fact those "principles" were merely factual matters which arose in that particular case.
It is true that the primary judge relied at length upon most of the factors identified by Martin J in Chalmers v Leslie. Indeed, doing so constitutes the majority of his Honour's written judgment. It is also true that passages of his Honour's reasons describe those factors as "principles". Even so his Honour commenced at [19]-[24] with reference to the principles governing stay applications as discussed in Moubarak and The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762; [2019] NSWCA 292 and concluded at [65] with his belief that "a fair trial, albeit an imperfect one, can be achieved in this matter" or, as his Honour said more correctly, that "the defendant has failed to discharge the heavy onus of establishing that such a fair trial cannot take place". Most of the factors identified by Martin J were relevant to determining whether it had been shown that there could not be a fair trial. I am unpersuaded that the reasoning, which the applicant fairly conceded was relevant, discloses appellable error because the relevant factual considerations are described as "principles".
While there should be a grant of leave, this ground is not made out.

Re-exercise of the discretion

In those circumstances, the discretion exercised by the primary judge has miscarried and must be re-exercised. It was common ground that this Court should and could do so. It was agreed that that should occur on a subset of the material which had been adduced before the primary judge. No updating evidence as to the applicant's cognitive decline (if that be the case) was adduced.
The evidence at trial which most recently bore upon the applicant's cognitive state was a report by a psychologist dated 13 September 2022 which was tendered, so the Court was told, without objection or cross-examination (there was no competing expert evidence adduced by the plaintiff). The psychologist described the applicant as an 87 year old Greek man with a history of cerebrovascular disease (including two previous strokes) and a diagnosis of vascular dementia. Since 2020 he has required 24-hour care and assistance with basic and instrumental activities of daily living and satisfied the diagnostic criteria for Major Neurocognitive Disorder (ie, dementia). She described his progression of dementia according to the Global Deterioration Scale as in stages 5-6, which is "mid-stage dementia". She said that when he progresses to the final "late-stage" (stage 7) dementia, and notes that it is not possible to predict when this will happen, "his communications skills will be severely impoverished and likely eventually lost, and his basic psychomotor skills (eg, ability to walk) will significantly decline". She said that he was able to understand the allegations "in a general, albeit very limited, sense", and had a "basic understanding of the concepts of guilty and not guilty, and clearly and consistently expressed himself to be 'not guilty'". She said that he did not have the cognitive or expressive language capacity to make his defence, nor to instruct his legal representatives to make his defence, nor to understand his defence options.
The parties' written submissions were sparse on the re-exercise of discretion. The applicant said that this was a "word-on-word" case, and that it would be impossible to obtain instructions and test the respondent's allegations. He was pressed, repeatedly, to expose the basis on which a permanent stay should issue, culminating in this exchange: WARD P: You're really … relying on nothing further than the mental cognitive state and inability to give instructions. As I understand the response to the question that you made when you gave your submissions in chief was in relation to that. DAVIS: Yes.
I am unpersuaded that a basis has been made out for a permanent stay.
First, the onus rests on the applicant to make out a case for a stay, and it is a heavy one.
Secondly, as was at the forefront of the respondent's case, the applicant had been confronted with allegations by the plaintiff many years ago, before he suffered a severe stroke in April 2014, albeit in a general sense. He has denied the allegations.
Thirdly, it has not been established by the applicant that it is impossible to adduce evidence of his denial of the complaints, if such evidence exists. For example, there may be evidence from the applicant's friends or family members bearing upon his reaction to the confrontations, or the subsequent receipt of a letter of apology and forgiveness from the respondent. It is highly likely that the applicant will be unavailable at the time of any trial, and thus hearsay evidence will be admissible. Moreover, the material before the Court implies that when the applicant was charged (admittedly this was after his stroke, but before the full impact of his cognitive decline), it was in the presence of his son, and the applicant declined to participate in an electronically recorded statement although denying that the charges had been made out. It has not been shown that the son is unable to give evidence of what his father said at that time.
Fourthly, I do not accept that in a case such as this the considerations upon which the applicant relied in the passages from Moubarak and BRJ reproduced above have anything like the same force. The evidence all points to the applicant having been confronted with the allegations before his stroke (and also after his stroke but before his later more serious cognitive decline). There is nothing to suggest that the tutor is unable to draft and verify a defence, or prepare a case.
Fifthly, while I accept that there is an incongruity in the applicant not being fit to stand trial on the indictment but being amenable to civil proceedings, the fact of the matter is that statute has intervened, and has done so for many years, in cases such as this. The procedures under the Mental Health (Forensic Provisions) Act 1990 and its successor the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) address the difficulty of administering criminal justice in the case of accused persons with cognitive deficits. So too the civil law has for many years developed procedures where defendants have difficulty in responding to or are unable to respond to allegations. The fact that the applicant appears in this Court by his tutor is one example. It is also true that if the applicant were to pass away prior to the hearing of the proceedings, those proceedings could continue against a representative of his estate, in accordance with and subject to the qualifications in s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW). It might be that the representative could seek a stay, but any such application would stand or fall based on the evidence adduced and its impact upon the conduct of the trial. The impossibility of obtaining instructions from a defendant who has deceased does not of itself prevent the continuation of civil proceedings. That fact tends to diminish the significance of the fact that the tutor will have difficulty in obtaining instructions while the applicant is alive.
It follows that I am unpersuaded that the applicant has made out a case for a permanent stay.

Conclusion and orders

For those reasons, while there should be a grant of leave, the appeal should be dismissed.
Costs are a little complex. On the one hand the applicant has failed to alter the outcome reached in the District Court. On the other hand, the written submissions of the respondent strenuously defended a judgment which almost self-evidently had failed to address a substantial argument advanced by the applicant. It is difficult in those circumstances to criticise the fact that the applicant sought and obtained leave to appeal. Had the course proposed in the respondent's opposition to the application of leave been adopted, and there had been a hearing of leave alone, then there would have been further delay and the costs of a second hearing in this Court.
I considered an order that the applicant pay a substantial fraction of the respondent's costs in this Court, reflecting the matters summarised above. On the other hand, the inevitable consequence of success in setting aside the discretionary decision of the primary judge was the re-exercise of discretion by this Court, and on balance I think there is no reason to depart from the ordinary rule that costs follow the event and the event is the ultimate failure of the application for a permanent stay.
Finally, I should mention three further points for completeness.
First, in Moubarak at [88], Bell P considered the possibility that, while it might not be possible to establish that a fair trial was impossible, the evidence might sustain the conclusion that there remains "a real risk that a fair trial would not be possible". His Honour declined to resolve that issue. It was not relied upon in the present case, and nothing in these reasons should be understood to bear upon the correctness or otherwise of that point.
Secondly, during the course of the hearing it became clear that there might be some misconceptions about the use which could be made of some of the material tendered without objection. In particular, if the reasons of the District Court following the Special Hearing are tendered, it will be important to have regard to the prohibition in s 91 of the Evidence Act 1995 (NSW) and the limited exception in s 92(2), notwithstanding that both sides (and the primary judge) appear to have proceeded on a different basis.
Thirdly, the Court was told at the commencement of the hearing on Monday 17 April 2023 that a replacement white folder had been filed. I did not have a copy of the folder at the time. The folder removed some of the documents, and repaginated the rest of them. This course encountered three problems. The first was that it was left to the last day. The second was that the parties' submissions had referred to the previous pagination. The third and largest source of difficulty was that copies of the new folder appear to have been filed with the Registry on Friday 14 April. It is not clear when during the course of the Friday they were filed, but they bear a stamp of that date. The Registry receives very many documents each day, and it takes time for the documents to be placed with the appropriate file, especially if the file has been sent to the chambers of one of the judges listed to hear the matter. The not unpredictable result of the filing of the folders in the Registry on the Friday is that my folder was received after the hearing was complete (as, I understand, was the presiding judge's folder). Especially if the folders were only available in the afternoon after the list had been published, it would have been far better for the applicant's solicitor to have contacted the staff of one of the judges hearing the appeal to arrange for the delivery of the folders.
I propose the following orders:
Grant leave to appeal.
Direct the applicant within 7 days to file a notice of appeal in accordance with the draft notice of appeal, and otherwise dispense with the rules as to service.
Appeal dismissed, with costs.
ADAMSON JA: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 April 2023

Mental Health (Forensic Provisions) Act 1990(NSW)

Felons (Civil Proceedings) Act 1984(NSW)

(2019) 100 NSWLR 218

(2019) 101 NSWLR 762

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