CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Stay of proceedings - applicant accused of sexual offences against children - found unfit to plead - election made for trial by judge alone - application for permanent stay based on poor health and delay - whether accused person who is unfit to plead required to attend special hearing - likely outcome of proceedings if special hearing does not lead to acquittal - delay - continuation of proceedings not involving unacceptable injustice or unfairness or an abuse of process - permanent stay refused

Bail Act 1992 (ACT), s 30

Court Procedures Act 2004 (ACT), s 76

Crimes Act 1900 (ACT), ss 61, 79, 81, 92K(2), 300(1), 316, 316(1), 316(2), 316(6), 316(7), 317, 317(3), 317(4), 318, 318(2), 318(2)(b), 319, 319(2), 441, 441A

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)

Crimes Legislation Amendment Act 2001 (ACT), s 61

Crimes Legislation Amendment Act 2013 (No 2) (ACT)

Criminal Procedure Act 1986 (NSW), ss 56, 130

Criminal Procedure Act 2009 (Vic), s 330(3)

Criminal Procedure Act 2004 (WA), s 88(4)

Evidence (Miscellaneous Provisions) Act 1991 (ACT), 32

Human Rights Act 2004 (ACT), ss 21, 22

Law Reform (Sexual Behaviour) Ordinance 1976 (ACT), s 6

Mental Health (Forensic Provisions) Act 1990 (NSW), s 21(1)

Aboud v Attorney-General for New South Wales (1987) 10 NSWLR 671

Arrivoli v R [2017] NSWDC 112

Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75

Boulos v R [2008] NSWCCA 119

Director of Public Prosecutions, South Australia v B [1998] HCA 45; 194 CLR 566

Dupas v The Queen [2010] HCA 20; 241 CLR 237

Hakim (1989) 41 A Crim R 372

Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23

Jenkins v Whittington [2017] NTSC 65

Lipohar v The Queen [1999] HCA 65; 200 CLR 485

McDonald v The Queen [2016] VSCA 304; 263 A Crim R 356

R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343

R v Chute [2017] ACTSC 246

R v Chute (No 2) [2017] ACTSC 347

R v Chute (No 3) [2017] ACTSC 409

R v Edwards [2009] HCA 20; 83 ALJR 717

R v Glennon [1992] HCA 16; (1992) 173 CLR 592

R v Hallocoglu (1992) 29 NSWLR 67

R v Howson (1981) 74 Cr App R 172

R v Jones [1998] SASC 7021; (1998) 72 SASR 281

R v Jones (No 2) [1972] 1 WLR 887

R v Richardson [2016] ACTSC 22; 307 FLR 8

R v WRC [2003] NSWCCA 394; 59 NSWLR 273

R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1

Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116

TS v R [2014] NSWCCA 174

Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378

1. On 24 July 2017, Murrell CJ found that the accused, John Chute, was unfit to plead to an indictment containing 16 counts: R v Chute [2017] ACTSC 246. Her Honour ordered that the matter be listed for a special hearing under s 316 of the Crimes Act 1900 (ACT).

2. By Application in Proceeding, filed on 12 October 2017, the accused sought an order that there be a permanent stay of the special hearing. The grounds for that application were as follows:

1.1. The continuation of these proceedings by way of special hearing will involve an unacceptable injustice or unfairness to the Accused.

1.2. The allegations date back to 1979, some 38 years ago, and as a consequence, the Accused will be severely prejudiced in his defence by this extraordinary delay.

1.3. The Accused suffers from poor health, such that he is unfit to be tried and he has cognitive and memory deficits that significantly impair his ability to defend those allegations.

1.4. The circumstances involved in this prosecution are so unfairly and unjustifiably oppressive as to constitute an abuse of process.

3. The special hearing was listed to commence on 4 December 2017.

4. I heard argument in relation to the application for a stay on 15 and 16 November 2017. During the course of argument in relation to the stay it became clear that, following the decision of Murrell CJ, neither the parties nor the Court had given any consideration to the operation of s 316(2) of the Crimes Act. That subsection permits a person who has been found unfit to plead to elect, either directly or via a guardian, to have the special hearing conducted as a trial by judge alone as opposed to a trial by jury. I heard argument on the issue and on 17 November 2017 determined a trial by judge alone was available and that the accused remained entitled to make an election: R v Chute (No 2) [2017] ACTSC 347. Subsequently, further medical evidence was tendered and, on the basis of that evidence, I was satisfied that the accused was incapable of making an election to have his special hearing conducted by judge alone: R v Chute (No 3) [2017] ACTSC 409. I therefore directed that the Australian Capital Territory (ACT) Civil and Administrative Tribunal (ACAT) appoint a guardian to consider whether to make such an election.

5. The matter was mentioned before me on 15 February 2018, at which time it was anticipated that the ACAT would shortly appoint a guardian to consider the making of an election. In May 2018 it emerged that neither the registry nor either party had communicated the orders to the ACAT and it was for that reason that no appointment had been made.

6. On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone.

7. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury.

8. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay of the special hearing. It is, therefore, now possible to determine that application upon the evidence and submissions previously made in light of the fact that the special hearing would be conducted before a judge sitting without a jury.

9. The accused is facing 16 charges. They are summarised in the following table. I have referred to the various complainants as Complainant 1, Complainant 2 et cetera.

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 92K(2), Crimes Act

s 92K(2), Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 79, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

s 81, Crimes Act

10. The charges under s 81 allege that the accused indecently assaulted a male person without the effective consent of that person, being a person under the age of 16 years. The charges under s 92K(2) are charges of committing an act of indecency upon the complainant, being a person of or above the age of 10 years but under the age of 16 years. The charge under s 79 is a charge of buggery without an effective consent of the complainant.

11. The offences in relation to Complainant 1 are alleged to have occurred when he was nine or 10 years old. He was a student at Marist College. Count 1 involved fondling the complainant's genitals over his underwear. Count 2 involved fondling the complainant's genitals over the top of his pants and then taking the complainant's hand and putting it on his lap over his penis. Count 3 involved the accused putting his hands down the complainant's pants and fondling his genitals. Count 4 involved putting his right hand down the complainant's pants and grabbing his penis. Complainant 1 first complained to another teacher at the time. In 2008 he told his wife about the incidents. He then spoke to a solicitor from Porters Lawyers. The complainant contacted police to report the incidents in late 2015 and participated in a recorded interview in 2016.

12. Complainant 2 was at the relevant time 12 to 14 years old. The accused taught him religious studies at Marist College. Count 5 is alleged to involve the accused giving Complainant 2 a bear hug, placing his hands inside the complainant's pants and fondling his genitals. Count 6 allegedly occurred when Complainant 2 was sitting at a desk and the accused was walking between the desks and rubbed his genitals against the complainant's arms and elbows. Count 7 allegedly occurred when Complainant 2 was 13 or 14 years old. The accused had invited several boys to work in the "pie wagon" during a rugby union carnival. The accused grabbed him in a bear hug and placed his hands down the complainant's pants, fondling his genitals inside his underpants for a few minutes. Count 8 is alleged to have occurred when Complainant 2 was in year nine and was 14 or 15 years old. The complainant was leaving the school and was taken out to dinner by the accused. When returning from dinner the accused stopped behind him, placed his arms around him and put his hand down his pants and fondled his penis. The complainant told him "You can't keep doing this to me. I'm too old, it isn't right." He disclosed the incidents to a friend in 2008 and provided a statement to police in that year. He contacted police again in 2015 after seeing a news article relating to changes in legislation which allowed charges to be laid.

13. Complainant 3 was a year seven student at Marist College and was between 12 and 13 years old. The accused would wear a cassock over his clothing. Count 9 is alleged to have occurred on an occasion where he was not wearing pants or underwear underneath his cassock. The accused approached the complainant while he was sitting at his desk, placed his arm around him and rubbed his erect penis against the complainant's shoulder or upper arm. Count 10 is alleged to have occurred at a theatre night at Marist College when the accused sat next to Complainant 3 and put his hand underneath the waistband of the complainant's jeans and began fondling his penis. The complainant told him to "Leave me alone". Complainant 3 told a friend about the incidents in the late 1980s or early 1990s. In about 2002 he partially told his wife about the incident. In 2016 he reported the incidents to police.

14. Complainant 4 was a year seven student and 12 or 13 years old. The accused was his year seven form master and religious teacher. Complainant 4 told the accused that his mother had caught him masturbating. The accused is alleged to have touched the complainant's genitals on the outside of his clothing causing him to get an erection. This is Count 11. Count 12 involves an allegation that Complainant 4 was in the accused's dormitory room when the accused made him perform oral sex on him. The complainant didn't want to do this but the accused hit him across the head with a large purple Bible. Count 13 is alleged to have occurred later that year, about a month before the Christmas holidays, when the accused took Complainant 4 to his office and had penile-anal intercourse with him. Complainant 4 told his wife about the incidents in 2013. He also disclosed them to his psychiatrist. He reported them to police in November 2016.

15. Complainant 5 ran away from home when he was in year 10. The accused found him in the college chapel. The next day the accused is alleged to have met with Complainant 5 and asked him questions while at the same time massaging his penis over a period of about five minutes. This is Count 14. In about 2009 the complainant disclosed what had happened to him to another person. He made his complaint to police in August 2017.

16. Complainant 6 was in year six at the relevant time. Count 15 involves an allegation that the accused rubbed or touched the complainant's genitalia over his shorts. Count 16 relates to an occasion when Complainant 6 was to be disciplined by the accused. The complainant was required to bend over and touch his toes. The accused spread his legs apart and placed his hands on the inside of his legs and touch and fondled his genitals. He would also place his hand on his bottom. He would then hit him with a leather strap across the back of his knees. He made his complaint to police in February 2017.

17. The Crown proposes to call each of the complainants. The Crown also proposes to make an application in relation to the use of evidence of one complainant as tendency evidence in relation to the accused. It will also seek to have the evidence of each complainant used as tendency evidence in relation to the other allegations made by that complainant. That application is yet to be determined.

18. This affidavit was prepared for the purposes of the Crown's tendency application. However, it is also relevant to the present application. It annexes the indictment, the amended case statement, the tendency notice and statements and related documents disclosing the anticipated evidence of the complainants. For present purposes, the statements are useful in that they disclose not only the nature of the complaints, but also the dates when they were made to police.

19. The affidavit of 28 September 2017 annexed the amended case statement, the indictment and various documents relevant to the tendency application including statements made to police by Complainants 5 and 6.

20. Mr Walsh's affidavit identified that the accused was born in 1932 and is now aged 86. At the age of 11 and a half he left his family home and went to the Marist Training Centre in Mittagong. It then provided a chronology of events relevant to the present application.

(a) Between 1950 and 1952, the accused taught at the Marist Brothers Primary School in Kogarah.

(b) Between 1953 and 1957, he taught at the Rosalie Marist College in Brisbane.

(c) From 1958 to 1961, he taught at Villa Maria at Hunters Hill.

(d) Between 1961 and 1964, he taught at Marist Brothers Primary School in Lismore.

(e) The affidavit does not provide evidence as to what the accused was doing between 1965 and 1975.

(f) In 1976, he was engaged as a secondary school assistant and religious education coordinator at Marist College in Canberra. He was responsible for years seven and eight and taught there until 1993.

(g) In 1985 to 1986, he was involved in a serious motor vehicle accident in New Zealand, suffered a head injury and was hospitalised in Auckland.

(h) He retired in 1994.

(i) In 1995, the accused was diagnosed with chronic thrombocytopenia and diabetes.

(j) Between 1997 and 2007, he resided at the Marist Centre in Mittagong.

(k) In 2007, the accused was arrested and charged with a number of sexual assault offences when he was teacher at the Marist College in Canberra. Mr Walsh acted for him at that stage and referred him for medicolegal assessment to Dr John Albert Roberts, forensic psychiatrist. Dr Roberts provided a report dated 15 January 2008. He also provided a supplementary report on 25 January 2008.

(l) At the time of his charging in 2007 and 2008, there was publicity surrounding those events. Some examples of that were exhibited to Mr Walsh's affidavit.

(m) On 23 June 2008, the accused was sentenced by Gray J after pleading guilty to a large number of offences involving the commission of acts of indecency in respect of students at the Marist College in Canberra. He was given a head sentence of six years and required to serve two years in full-time detention with a further year to be served by way of periodic detention. The balance of his sentence was suspended. During the period of suspension, the accused remained in the ACT and lived at the Southern Cross Aged Care Facility.

(n) In June 2010, he underwent an Aged Care Assessment and was diagnosed as suffering from dementia, short and long-term memory loss and complications arising from cardiovascular disease.

(o) In 2014, he moved from the ACT to the Southern Cross Aged Care Facility at Greystanes, New South Wales. He then moved to the Scalabrini Aged Care Facility at Drummoyne and lived there until December 2015. He then moved to his current aged care facility in Bexley.

(p) On 12 February 2016, he was found unfit to stand trial in relation to charges made against him arising from his time at Lismore and the matter was referred to the Mental Health Review Tribunal. On 7 June 2016, the Mental Health Review Tribunal made a finding that the accused was unfit and would not become fit to be tried for the offences within 12 months.

(q) In April 2016, Dr Xing Luo conducted a geriatric assessment of him.

(r) In June 2016, a cardiologist, Dr Anil Aggarwala, provided a report on his condition and found: "Overall, Mr Chute's cardiac status is stable".

(s) In September 2017, Dr Bree Wyeth, a consultant psychiatrist engaged by ACT Health, provided a report to the Magistrates Court.

(t) On 24 July 2017, Murrell CJ found that the accused was unfit to plead within the meaning of s 311 of the Crimes Act. This is the judgment referred to at [1] above.

21. The psychological and psychiatric evidence gathered during 2015 and 2016 was summarised in the judgment of Murrell CJ: R v Chute at [13]-[17].

22. The affidavit of Mr Walsh also indicated that since 2014 the accused has suffered from a number of medical conditions:

(a) July 2014: right deep vein thrombosis;

(b) October 2014: B12 deficiency anaemia, thrombosis of the small saphenous vein, hyperlipidaemia and gastro-oesophageal reflux disease;

(c) December 2014 - February 2015: left Achilles tendinosis and repair;

(d) April 2015: renal impairment;

(e) May 2015: Parkinsonism, vitamin D deficiency and hypertension;

(f) 2016: mild dementia with slow cognitive decline and spinal canal stenosis.

23. The accused takes a range of medication for his conditions.

24. Mr Walsh provided evidence of his observations of the accused in the period following his admission to the aged care facility in Bexley. It was his observation that the accused's cognitive functioning had deteriorated. He said he had outward happy appearance but could not focus on the subject matter that he was talking about and would often go on and on talking about the subject matter in a manner that didn't make sense. He also observed that he became tired fairly quickly, that he had difficulty getting in and out of a motor vehicle and that he could only walk with the aid of a walking chair. He observed that in relation to the current allegations, and also some other charges arising from his time in Lismore, the accused could not provide him with proper instructions about the specific allegations made. Mr Walsh had the accused examined by Dr Raymond Englund, a vascular surgeon.

25. He also gave evidence of his observations of the accused on 6 October 2017 when he visited the accused at the Scalabrini Retirement Home. The accused described to Mr Walsh a variety of ailments: "nervous leg syndrome"; the possibility of an operation for spinal fusion; poor eyesight and being dependent upon nursing staff in the facility. The accused also described being taken out for drives.

26. Mr Walsh also said that he had conversations with the accused in which he denied any allegation of oral sex and buggery and, when asked how he felt about going to the Supreme Court in Canberra, he said words to the effect of, "I would be very afraid and I would not be able to cope with it ... I would collapse. Please I don't want to go". He described that when stressed he was incontinent. He also described his desire not to return to prison.

27. The affidavit of Mr Walsh of 7 November 2017 related to further information about the accused's condition. The affidavit annexed a report of a magnetic resonance imaging (MRI) scan. It also annexed discharge referral notes from St George Hospital. The accused appears to have been referred to St George Hospital because a doctor at the nursing home was concerned about the recent results of an MRI of the brain. The discharge letter appears to allay those concerns. It provided:

Thank you for your ongoing care of Mr John Chute, an 85yo gentleman who was referred to St George Emergency Department by his GP who was concerned about findings on his MRI report.

History of Presenting Condition:

John Chute is an 85yo gentleman who was referred to St George ED by his GP who was concerned about the findings on his most recent MRI report. This study was done as a follow-up following a "mini-stroke on previous MRI", and showed, "No signs of acute ischaemia/infarction and no large region of chronic old territorial infarction identified. Tiny micro haemorrhagic focus in the right frontal lobe and fairly extensive chronic small vessel ischaemic changes in both hemispheres."

These findings were reported in context of no new/acute clinical features on discussion with the patient, though he did report some subacute issues he had been having over the past 6 months or so. Specifically he describes problems with short term memory and attention, episodes of sleepwalking, and some mild occasional dysphagia. He has also had worsening unsteadiness of his gait and has fallen twice in the last month at the nursing home (no headstrikes, occurred while getting up quickly). This is all in the context of known Parkinson Disease. He denies any recent infective symptoms, nausea, vomiting, headaches, and feels well in himself.

On examination he had Parkinsonian features on neurological assessment, with a shuffling gait, as well as slow and rigid movements on coordination testing. He also had diplopia on lateral gaze (not new), and slightly difficult to elicit reflexes (which he owes to his rigidity). Remaining examination was unremarkable.

Discussion of his MRI with the Neurologist Registrar concluded there was no acute concern of a bleed, as the "tiny focus of gradient echo signal hypointensity in the right frontal lobe just outside the right lateral ventricle," does not necessarily signal an acute bleed (as this can also be seen in old bleeds and in cavernous malformations. As such he does not need to cease his apixaban for this. It is of note that the reporter of this study did not have access to his previous MRI and so could not state if it was an old or new finding. Clinically there was no acute concern of a significant bleed. He was thus discharged back to the nursing home and should follow up with a Neurologist as an outpatient for further discussion, and review of his Parkinson Disease symptoms.

28. The affidavit also annexes a report of Dr Roberts following a reassessment of the accused on 25 October 2017.

29. The report contained a description of the history taken from the accused in relation to his physical and mental complaints. The report noted that he suffers from Parkinson's disease, restless leg syndrome, wore stockings for thrombosis in both legs and suffered from hip and knee pain.

The predominant symptomatology is reflective of debility secondary to age.

Cognitive deficits are reflective of his dementia which appears to have been relatively stable over time.

In terms of his current MMSE results this is consistent with the presence of mild dementia.

I would consider that while Mr Chute is able to function within a protected environment I would consider that the cognitive demands of participating in a Court case would be beyond his capacity.

31. He reviewed various previous medical reports relating to his mental and physical health. He recommended that the accused be assessed by a neurologist. His conclusion was as follows:

From the psychiatric and physical viewpoint I would be especially concerned in the context of the stress associated with a trip from Sydney to Canberra in a man suffering from pain and compromised physical capacity, coupled with the stress of involvement of a trial on his blood pressure which would be expected to rise under such circumstances in the context of what appears to be a demonstrable area of weakness which results in a potential liability for further cerebrovascular events.

It would therefore be a valid question to evaluate having regard both to the physical and psychiatric status of Mr Chute as to whether having regard to the presence of the bleed found on MRI whether there is a possibility having regard to this finding and his general physical health status, his dementia and therefore compromised psychiatric status that stress of placing this man in an environment with which he cannot cope would result in such a level of agitation with the consequent rise in blood pressure that he would develop such a level of agitation with the concomitant rise in blood pressure that he would potentially compromise his health to the extent that he may be at risk from a further stroke or severe cardiac event.

32. The structure of this last paragraph of the opinion makes it clear that it is one which is very qualified, particularly having regard to Dr Roberts' area of expertise.

33. In his further affidavit of 10 November 2017, Mr Walsh gave evidence about the circumstances of his attendance on 9 November 2017. On that occasion Mr Walsh found the accused on the floor. Subsequent investigations disclosed that he had very high blood pressure. He was taken by ambulance to St George Hospital. He was returned later that afternoon to the nursing home. He had a discussion with the accused in which he indicated that he could not recall Mr Walsh from earlier in the morning. When asked his views about going to Canberra, he indicated that he wished to be left alone.

Oral evidence of Dr Roberts on 15 November 2017

34. Dr Roberts gave oral evidence on 15 November 2017. His oral evidence involved going through and commenting upon various previous medical reports and affidavit material.

35. He was asked to assume that a special hearing would take approximately five days, that there would be a jury and that the accused would be expected to be physically present, although the Court would afford him appropriate breaks as required. He was then asked a series of questions. The first was about the accused's capacity to recall events 30 to 40 years ago. The doctor said that assuming that he could not remember the events, the accused would become agitated and distressed, would not be able to give a coherent account as to questions in relation to those events and reliance could not be placed upon anything that he said. He said that the accused would become more agitated as he struggled to cope with the information input inevitable in such proceedings.

36. Dr Roberts was asked to comment upon the accused's capacity to travel from Sydney to Canberra. He said that because of his pain and uncomfortable state, the travel would compound his anxiety and distress and make the trip very difficult. It would therefore exacerbate a tendency towards anxiety and agitation. He agreed with the proposition that the accused was incontinent of urine and faeces. However, the doctor said that continence was going to be a major problem "because if he cannot control his bowel and bladder that would be a very unpleasant situation for him and the court". I treat that evidence with caution as it emerged at the conclusion of his cross-examination that Dr Roberts had not seen direct evidence of incontinence but that this was something that had been "put to me" and there was other evidence that the accused was continent of urine and faeces. In his report of 3 November 2017, Dr Roberts did address that issue, but did not clearly reach a conclusion that indicated any report of actual incontinence.

37. In relation to being in the Court environment, Dr Roberts said: "I would be very surprised if he was able to tolerate such an environment without decompensating emotionally, displaying high levels of agitation and I think that would potentially pose a risk to his - his wellbeing." He explained this by reference to the possibility of an increase in blood pressure leaving him at significant physical risk.

38. In cross-examination it was suggested to him that the accused's dementia condition had been fairly stable. Dr Roberts agreed that the accused was suffering mild to moderate dementia in 2007-2008 and that he was suffering a similar level of dementia currently. While he would suspect that because the effluxion of time there would have been some progression, he had not progressed to a moderate to severe level of dementia. He was asked about the accused's heart condition and agreed that with medication his condition was "controlled". He was asked about the event of high blood pressure when the accused had a fall. It was suggested to him that it was impossible to ascertain the particular risk of a further cerebrovascular event. He said: "I think the only thing you can say is that having regard to the multiplicity of factors involved he is a person at significantly increased risk, but to put a percentage on it, I don't think that can be. Well, I know it cannot be done." He later gave evidence that the accused lived in a very nonthreatening environment but that in a court room he would be faced with matters that were extremely anxiety provoking, that could cause him severe distress, increase levels of tension and cause his blood pressure to rise.

39. In re-examination he identified that the blood pressure recorded at St George Hospital, which recorded a pressure of 206 over 110, was "life threateningly high, especially in a man like him".

40. On 20 November 2017, Mr Walsh provided a further affidavit. This related to his attendance at the nursing home at Bexley. This affidavit related to Mr Walsh's attempts to get instructions as to whether or not he should make an election for trial by judge alone. It was the evidence that was put before the Court informing the conclusion that the accused did not have the capacity to elect for trial by judge alone: R v Chute (No 3) at [1], [10]. The affidavit also recorded the difficulty which the accused appeared to have in getting to and from the bathroom adjacent to his room.

41. The affidavit of Mr Walsh, sworn 1 December 2017, annexed a variety of documents.

42. The first was a collection of medical records related to the admission of the accused to St George Hospital with pneumonia on 21-22 November 2017.

43. The next was a letter of instructions from Mr Walsh to Dr Roberts seeking a report relating to the evidence of Complainant 4. The records provided included a transcript of a conversation between Complainant 4 and two police officers, and certain clinical records relating to the mental health of the complainant. The letter sets out aspects of the complainant's psychiatric history as disclosed in the medical records. It also refers to a report of Dr Judith Bragg proposed to be relied upon by the Crown at the special hearing. The letter seeks an opinion as to whether or not the complainant suffers from a recognisable psychiatric illness and whether or not that could impact upon his capacity to remember the alleged sexual assaults. It also seeks an opinion as to whether or not the complainant has suffered a brain injury and whether his history of drug dependence may influence his capacity to recall events so long ago.

44. The resulting report of Dr Roberts was annexed. The structure of the report appears to be a sequential recitation of the material with which he was briefed as well as comments (identified as such) upon that material. Amongst the comments made by the doctor are:

(a) The presence of severe substance use, the affirmation of memory issues and the presence of auditory hallucinations were psychiatric phenomenology that would cast doubt upon the complainant being able to give evidence in relation to facts. It would be impossible to differentiate from matters of assumed fact or from such evidence being the product of a disturbed state of mind.

(b) If cognitive difficulties are present, the potential for such difficulties to impact upon the capacity to give evidence of facts would need to be considered.

(c) A history of alcohol excess, cannabis use and street fighting would predispose the complainant to develop brain damage which "would potentially impact upon" his capacity to give evidence of facts.

(d) Memories arising from a certain point in time (rather than having been always present) are "from the forensic/psychiatric viewpoint of questionable validity and would require confirmation by independent corroboration".

(e) It would be necessary to examine whether the treatment provided by the Service Assisting Male Survivors of Sexual Assault (SAMSSA) and the preparation of a statement to police and the Royal Commission into Institutional Responses to Child Sexual Abuse "constituted interactions that may have assisted in memory recovery and distortions of memory".

45. In summary, the report provides substantial lines of enquiry that Dr Roberts considers should be pursued in relation to the evidence of Complainant 4. The report does not purport to reflect a final opinion on the reliability of the evidence, although clearly, having regard to the nature of the issues identified from the material with which he was briefed, it is likely that any final opinion would be likely to cast doubt upon the reliability of Complainant 4's evidence. This is reflected in the doctors "Summary and Opinion" at the end of his report, which is as follows:

[Complainant 4] is alleging that he was the victim of childhood sexual assault by Mr John Chute.

From the forensic psychiatric viewpoint his history presents certain concerns.

These concerns include:-

• The absence of any knowledge as to [whether] the recollections held by [Complainant 4] were always held by him.
• That [Complainant 4] has a history of marijuana and other illicit substance use and alcohol excess.
• Such would potentially impact upon [Complainant 4's] ability to accurately recollect matters of fact and in regard to comments made in relation to his cognition, the presence of hallucinations and the influences of substances as to whether [Complainant 4] has the capacity to give evidence in regard to matters of fact would require evaluation.
• I note reference is made in documentation to the involvement of counsellors in the preparation of [Complainant 4's] Police statement and his evidence before the Royal Commission.

COMMENT: The involvement in such activities would need to be evaluated in the context of the capacity of such involvement to modify recollections and perceptions of past events.

46. A further letter to Dr Roberts dated 28 November 2017 is annexed. The letter refers to the accused's admission to St George Hospital on 21-22 November 2017. A further report is provided in which Dr Roberts expressed the opinion that the references to pneumonia and hypertension "would be additional factors that would potentially impact upon cognition". He continues:

The fluctuating cognitive performance as described by you is consistent with Mr Chute's fragile state of health, the presence of mild dementia and the impact of intercurrent illnesses and stressful circumstances on his cognitive function.

His demonstrated vulnerability supports the opinion previously expressed by me and my colleagues in regard to his mental state.

47. Finally, there is a letter of instructions sent to Dr Roberts on 22 November 2017 seeking a report addressing the accused's capacity to make an election as to whether his special hearing should proceed by way of a trial by judge alone. The report in response was provided and marked as an exhibit. I relied upon this report in reaching the conclusion that a guardian needed to be appointed in R v Chute (No 3) at [10].

48. Other exhibits tendered at the hearing were as follows.

(a) Exhibit 1 was a medical record from St George Hospital relating to his brief hospital admission after a fall at the nursing home on 9 November 2017.

(b) Exhibit 2 was the Magistrates Court documents sent to the Supreme Court for the purposes of the accused's committal for trial.

(c) Exhibit 3 was a statement made to police by Complainant 2 dated 21 May 2015. It indicates that he had provided an earlier statement to police on 4 July 2008. The matter did not proceed at that time. In early March 2015, he saw a media release issued by ACT police and that led him to get in contact with the police again. He met with police on 21 May 2015 and made the statement annexing various documents. Only Annexure A is attached to the statement that was put into evidence. That was an unsworn document in the form of an affidavit prepared for the purposes of civil proceedings between him and the trustees of the Marist Brothers. It records the events that gave rise to Counts 5, 6 and 8 on the indictment. It indicates that prior to instructing solicitors in 2008, he had never told anyone about the sexual abuse by the accused.

(d) Exhibit 4 was the statement made to the Royal Commission by Complainant 2 dated 1 June 2014. This was a statement explaining Complainant 2's experience of the process of litigation against the Marist College, the approach taken by the College and Catholic Church Insurer and the reasons for his settlement of the proceedings at mediation.

(e) Exhibit 5 were copies of the informations which initiated proceedings which led to the pleas of guilty for which the accused was sentenced in 2008. Also included in the exhibit was the police statement of facts. There is no evidence as to whether or not the police statement of facts was the Statement of Facts which was ultimately admitted by the accused and formed the basis upon which he was sentenced.

49. A permanent stay of criminal proceedings is an exceptional remedy as it amounts, in effect, to a continuing immunity from prosecution. For that reason it must only be granted in extreme or exceptional circumstances. The applicant for a permanent stay has an onus to establish the factual circumstances which ground the application and warrant the use of this exceptional power: Boulos v R [2008] NSWCCA 119 at [46]. In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34. In R v Edwards [2009] HCA 20; 83 ALJR 717, the High Court articulated the test, by reference to the earlier decision in Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, in the following terms (at [23]):

"whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness" or whether the "continuation of the proceedings would be 'so unfairly and unjustifiably oppressive' as to constitute an abuse of process". (Emphasis in original)

50. The categories of circumstance which may justify an order granting a stay of criminal proceedings are not closed, nor are they capable of exhaustive definition. However, it must be recognised that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases: Barton v The Queen at 116; Jago v District Court of New South Wales at 31, 76.

51. Because he was found unfit to plead, the charges against the accused are to be dealt with by a special hearing.

52. In Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116, the High Court unanimously upheld the refusal of a permanent stay in the case of a special hearing under New South Wales legislation (at [31]-[33]). The Court upheld other grounds of appeal for reasons which it is not necessary to refer.

53. The Court (at [24]) indicated that the principles governing stays were not disputed and referred with approval to Aboud v Attorney-General for New South Wales (1987) 10 NSWLR 671 at 684, 692. The judgment (at [25]) also referred to the caution expressed by Brennan J in Jago v District Court of New South Wales at 50 that if permanent stay orders were to become commonplace it would not be long before courts would forfeit public confidence and that the granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind. The Court (at [26]) accepted that the categories of factual situations which may call for consideration of the possibility of abuse of process in criminal proceedings are not closed. It adopted what was said by Mason CJ, Dean and Dawson JJ in Walton v Gardiner at 393 that "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exists to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness". The judgment (at [27]) recognised that fairness or unfairness defies analytical definition and essentially involves an intuitive judgment.

54. The stay in that case was sought in the context of the Mental Health (Criminal Procedure) Act 1990 (NSW). In that context, the Court at [28] said that a special hearing:

(a) gave the accused person an opportunity to be acquitted and hence bring proceedings to an end; and

(b) allowed victims an opportunity to see that a form of justice has been done.

55. The judgment recognised that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways precluded from full participation will have its deficiencies, but those deficiencies did not provide a reason to "construe and apply the Act otherwise than according to its tenor": at [28].

56. The appellant in Subramaniam v The Queen had relied upon the fact that her mental health prevented her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health. The Court adopted as the relevant test whether, in the light of the appellant's deteriorating condition, it "would be out of accord with common humanity" to allow the matter to proceed (at [31]). In doing so, it adopted the statements in Hakim (1989) 41 A Crim R 372 at 377 and R v WRC [2003] NSWCCA 394; 59 NSWLR 273 at [51]- [52]. The Court was not satisfied that the primary judge had erred in relation to his conclusion. The Court described the holding as "essentially a factual one and included a discretionary component": at [34]. As a consequence, the Court rejected the ground of appeal.

57. McDonald v The Queen [2016] VSCA 304; 263 A Crim R 356 is a case upon which the accused placed significant reliance. It involved a special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The accused person applied for a stay of the proceedings on the ground of abuse of process. He was 85 years old and suffering from advanced dementia. He had been charged with 10 counts of indecent assault, eight charges of gross indecency and one charge of sexual penetration of a child aged between 10 and 16 years, alleged to have occurred between 1982 and 1986. The trial judge refused a permanent stay. On appeal it was conceded by the respondent that the likely outcome of the proceedings if the accused was found at the special hearing to have committed the offences was a relevant matter to take into account and that his Honour had erred in not doing so. By majority, the Court of Appeal allowed the appeal. The difference between the majority and the minority was as to the re-exercise of the discretion following the concession of error by the respondent.

58. The majority found that although there was always a public interest in having a formal determination of the guilt or innocence of a person in a special hearing, the trial judge had erred in putting aside consideration of the likely outcome of proceedings if the applicant was found to have committed the offences. Their Honours considered that his unconditional discharge would be highly likely and that, in those circumstances, "the public interest in the proceedings was more limited. It lay only in the disposition of the charges for serious offences" (at [44]).

59. Their Honours said that "the nature and extent of the applicant's mental infirmity and its consequences constituted important factors bearing upon the question of unacceptable unfairness" (at [45]). At [46] their Honours said that:

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 conclusion of the majority was expressed at [47]-[48] as follows:

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.

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.

60. Ferguson JA, who dissented, did so because her Honour would have re-exercised the discretion differently. Her Honour (at [52]-[58]) reasoned as follows:

(a) It is important to bear in mind that the legislature has seen fit to establish the special hearing procedure with all its limitations and in those circumstances it was not appropriate to accord the accused's mental impairment such weight as might have been attributed to it absent the legislation and the procedure which it establishes.

(b) The likelihood that, if convicted, the accused would be released unconditionally if he was convicted was a relevant consideration but did not weigh heavily on the balance.

(c) That prospect did not lessen "the very important public interest in seeing charges for serious offences prosecuted and determined". If the accused was convicted yet released unconditionally "the complainants would nevertheless be vindicated, at least to some degree. It may also bring some closure for them."

(d) So far as delay was concerned, the delay in reporting by the complainants was explicable and following reporting there was no relevant delay by the prosecution. The loss of witnesses and other evidence was to some degree prejudicial and there was presumptive prejudice. However, appropriate directions could be given to ameliorate the potential prejudice to the accused.

(e) So far as the health of the accused was concerned, the judge was not satisfied that the special hearing process would be distressing for the applicant or that it would exacerbate or accelerate his level of dementia related incapacity. That finding was not challenged.

(f) Weighing all those factors her Honour was not satisfied that a stay should be granted because "[t]here 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".

(g) Her Honour concluded by re-emphasising the fact that the assessment of unfairness must take place in the context of legislative procedures that address what is to happen when the accused suffers from mental impairment leading him to be unfit. That has the effect of reducing the influence that mental impairment might otherwise have in determining whether fundamental unfairness is established.

61. Two points should be noted about the differing reasons in McDonald v The Queen. First, some of the language used by the majority where reference is made to the public interest in the continuation of the proceedings is suggestive of the proposition that the Court was engaged in a balancing exercise between what it perceives as the public interest in the proceedings against the disadvantages suffered by the accused. This appears to have arisen from the remarks of the High Court in Dupas v The Queen [2010] HCA 20; 241 CLR 237 at [37]. In that case, the Court said:

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.

62. The authorities referred to in this passage are R v Glennon at 598-599 and Jago v District Court of New South Wales at 33. In Jago v District Court of New South Wales, Mason CJ recognised that, in assessing whether a delayed trial should be stayed as a result of unfairness amounting to an abuse of process, the interests of the accused "cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial". In R v Glennon, Mason CJ and Toohey J referred to the need to consider, in the context of a stay due to pre-trial publicity, "the community's right to expect that a person charged with a criminal offence be brought to trial" and referred back to other authorities including the passage from Jago v District Court of New South Wales.

63. When considering the question of whether some unfairness relating to a trial upon criminal charges is so oppressive as to warrant a stay of the proceedings because they are an abuse of process, some consideration of the community's interest in bringing matters to trial is inevitable. The authorities referred to above indicate that it is a matter which cannot be ignored. The authorities do not, however, convert the question of whether or not there should be a stay into one which is simply a balancing exercise between the Court's perception of where the public interest lies having regard to the desirability that trials occur on the one hand, and the unfairness to the accused on the other. Some of the language used by the majority judges in McDonald v The Queen is more suggestive of such an approach and to the extent that the reasons do suggest such an approach, then the judgment should be treated with caution. The position remains that it is for the Crown to determine what charges are brought: Maxwell v The Queen (1996) 184 CLR 501 at 534; Director of Public Prosecutions, South Australia v B [1998] HCA 45; 194 CLR 566 at [21], and it is not part of the function of the Court, save in the extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith [1995] VicRp 2; [1995] 1 VR 10 at 25.

64. Second, Ferguson JA treated it as significant that the legislature had seen fit to establish a process by which persons who were unfit to stand trial were the subject of a special hearing. The emphasis on the statutory process is, in my view, significant. Any assessment of whether or not there is an abuse of process arising because of unfairness must take place in the context of the process established by the legislature. A special hearing is a process which quite obviously, if judged by reference to a normal criminal trial, has very significant limitations. However, it is a process which the legislature has established. To the extent to which there might be some unfairness in a process by which a person who is unfit to plead is nevertheless the subject of a hearing to determine whether certain acts were committed, then that is unfairness which is irrelevant to whether or not there is an abuse of the Court's process. That is because the relevant process which is allegedly being abused is that which is provided for by the legislature and includes any perceived unfairness which is inherent in that process. To assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.

65. TS v R [2014] NSWCCA 174 was an appeal from a judge of the New South Wales District Court who had refused a stay of a special hearing. The proceedings related to events that had been recalled by the complainant 37 years after they were alleged to have occurred. It is important to note, as background to the Court of Criminal Appeal's decision, that there was uncontested evidence that the memories recovered in those circumstances were unreliable. The contention on appeal was that the primary judge had applied the incorrect test to determine whether a stay should be granted. It was argued that her Honour had applied her focus to the effect of a special hearing under the Act rather than the particular circumstances of the appellant's case. The primary judge had focused on the nature of the special hearing, with its limited outcomes. The primary judge referred to the fact that, because of the unfitness of the accused, a special hearing may proceed in circumstances where the accused is unable to understand the nature of the charge or decide whether or not he has a defence or unable to provide instructions about matters such as what evidence should be tested in cross-examination. The primary judge said that the Court could not decline to exercise jurisdiction because the relevant statute might occasion some unfairness.

66. Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At [56]-[57], his Honour said:

The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.

In addition, the overall effect of her Honour's reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial."

67. Having identified an error, his Honour went on to consider whether to grant a stay in the circumstances of that case (at [66]-[74]). The matters relied upon were:

(a) the absence of available documentary evidence;

• (i) in relation to where the accused resided at the relevant times;
• (ii) in relation to widespread media publicity given to the appellant's prior record as this was relevant to whether or not the memories had been recovered before or after the complainant became aware of this;

(b) the age of the appellant and his health issues;

(c) the evidence of the unreliability of the recollections; and

(d) the absence of any independent corroboration of the complainant's allegations.

68. His Honour concluded at [77]: "The fundamental unreliability of the complainant's evidence, along with various other matters to which I have referred, satisfy me that the test for the grant of a permanent stay of proceedings has been met."

69. Leeming JA wrote a short concurring judgment emphasising the uncontested nature of the expert evidence as to the unreliability of the complainant's memories and demonstrated evidence of prejudice to the defence case. Adams J agreed with Bellew J and the additional remarks of Leeming JA.

70. In my view, TS v R must be understood in the context of the strength of the claim for a stay. Plainly, the starting point was that the accused had been found unfit to be tried. He had a variety of other health problems. The uncontested evidence about the unreliability of the sole complainant's recovered memories and the evidence of prejudice in relation to particular forensic issues in the absence of any corroboration made it a case suitable for the grant of a permanent stay.

71. An example of a successful application for a stay in the context of historical sexual abuse by a member of the Catholic clergy not involving a special hearing is that in Arrivoli v R [2017] NSWDC 112.

72. The accused is old and in poor health. He has mild to moderate dementia which means that he would be unable to follow or appropriately process the evidence given in a special hearing. He suffers from diabetes. He has heart conditions which are relatively stable. However, on occasion he suffers from very high blood pressure and there is a risk that stress may trigger this condition. He suffers from hip and knee pain. He is able to live in a controlled environment of a nursing home. Although the evidence is limited, I accept that stress such as that associated with attending court may cause him difficulties with incontinence. He has a variety of other conditions. He takes a variety of medication to manage his various conditions. He is likely to find travelling to Canberra unpleasant, stressful and tiring. If he was required to attend the hearing, then it is likely that this could only be achieved with considerable support and with shortened hearing days. Having regard to his mental state, there would be little that he would be able to contribute to his legal representatives and if he understood that there was an expectation that he would so contribute, then that would increase the stress associated with a special hearing. There is a risk that the stress, pain and fatigue associated with the conduct of a special hearing would provoke an acute health event by reason of the elevation of his blood pressure or by some other means.

73. An election for trial by judge alone has now been made on behalf of the accused. That has several consequences. Because it is a trial by judge alone, if the accused attends or is required to attend, there will be a greater degree of flexibility in the conduct of the hearing than would exist if it was to be conducted before a jury. For example, there will be greater flexibility in the granting of adjournments or the shortening of the hearing day in order to accommodate any difficulties that the accused might have. Further, if the accused is not required to and does not attend the hearing, then there will not be the risk that a jury will draw some form of adverse inference from his failure to attend the trial.

74. A fundamental question is whether or not it is essential to the lawful and fair conduct of a special hearing that the accused be present at part or the whole of that hearing. The starting point is, obviously, that he has been found unfit to plead. In those circumstances there is no requirement for him to enter a plea at the commencement of the hearing. That is because s 316(8) of the Crimes Act provides that "[a]t a special hearing, the accused is to be taken to have pleaded not guilty in respect of the offence charged".

75. In the present case, the basis for the unfitness to plead is on the basis that he was not able to follow the course of the trial due to his working memory impairment.

76. Section 316 does not determine whether the accused is required to attend the hearing. It does, however, contain a number of provisions which are relevant. Subsection (1) provides:

Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding.

This is a provision which articulates a general principle but is not prescriptive as to precisely what is involved.

77. Subsection (6) provides that "[u]nless the Supreme Court otherwise orders," the accused shall have legal representation at a special hearing. While the quoted words from the subsection appear to contemplate that there may be some circumstances where a person who is unfit to plead may be without legal representation, it is not clear what sort of circumstances those might be. The fact that the person is unfit to plead is not to be taken to be an impediment to the accused being represented at a special hearing: subs (7).

78. There is nothing in the section which expressly compels the attendance of the accused, although obviously sub-s (1) picks up the usual features of a criminal trial, including the presence of the accused.

79. The starting point is that there is "no trial in absentia at common law in the ordinary course": Lipohar v The Queen [1999] HCA 65; 200 CLR 485 at [69]. In other Australian jurisdictions there are statutory provisions which expressly authorise trials to proceed in the absence of the accused. Those statutes vary in relation to the circumstances in which a trial may proceed in a person's absence. The Queensland provision is limited to particular circumstances (poor conduct, accused absents himself or herself, illness or infirmity in a joint trial or proceedings for a misdemeanour): Criminal Code 1899 (Qld), s 617. Other provisions provide a more general discretion in the trial judge to permit a person to be absent during the whole or part of a trial: Criminal Code Act 1924 (Tas), s 369(2); Criminal Code Act (NT), s 361(1); Criminal Procedure Act 2004 (WA), s 88(4); Criminal Procedure Act 2009 (Vic), s 330(3). There is no equivalent provision in the ACT. The provisions of these statutes impliedly recognise that there may be circumstances in which a trial may be fairly conducted where the accused is not present.

80. Section 30 of the Bail Act 1992 (ACT) permits persons on bail to be excused from attending Court in accordance with the persons bail undertaking. Section 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) permits, in certain circumstances, persons (including parties to proceedings) to appear before the Court by audiovisual link.

81. In the absence of statutory provisions specifically authorising an accused to be excused from attendance during a criminal trial, the circumstances in which a trial can be conducted in the absence of the accused were recently summarised in Jenkins v Whittington [2017] NTSC 65 at [89]- [92] as follows:

1. Against that background, it may be accepted that:

... it is an essential principle of the criminal law that a trial for an indictable offence is to be conducted in the presence of the accused and trial means the whole of the proceedings including sentence: Lipohar v The Queen (1999) 200 CLR 485 per Gaudron, Gummow and Hayne JJ at 514; Lawrence v The King [1933] AC 699 at 708; R v Cornwell (1972) 2 NSWLR 1 per Jacobs JA at p 3. The reason for this was that at common law there was no trial in absentia." (Director of Public Prosecutions v Bakewell [2007] NTSC 49; 21 NTLR 171 at 180).

1. Three qualifications may be made to that statement of general principle. First, there are certain well-established exceptions to the operation of the principle. Secondly, the principle is limited in its terms to the trial of an indictable offence, and has nothing directly to say about summary proceedings. Thirdly, the requirement for the presence of the accused is subject to any statutory provision that might be enacted by the legislature.
2. The established exceptions to the application of the principle include:-
   • Where a defendant absconds and fails to appear at trial, there will have clearly been a waiver of the right to be present, and in that circumstance the prosecution may elect to go on with the trial in the absence of the defendant. (Ebatarinja v Deland (1998) 194 CLR 444 at 454; Jones, Planter and Pengelly [1991] Crim LR 856; R v King (2004) 155 ACTR 55; R v Collie (2005) 91 SASR 339 at [33]; Hellenic Republic v Tzatzimakis (2003) 127 FCR 130 at [89]; R v Ferguson [2015] NTSC 35). There is a divergence of judicial opinion as to whether this exception applies where the defendant is voluntarily absent at the beginning of the trial, or whether it is limited to circumstances in which the defendant absconds during the course of the trial. (R v Jones (Anthony) [2002] EWCA Crim 2949; [2003] 1 AC 1 at [10]; R v Gee [2012] SASCFC 86; 113 SASR 372).
   • Where a defendant misbehaves in such a way as to make his or her removal from court necessary there will have been a waiver of the right to be present. (R v Hayward [2001] QB 862; R v Berry (1897) 104 LT Jo 110; R v Lee Kun (1916) 1 KB 337 at 341; R v Vernell [1953] VLR 590; R v Ferguson [2015] NTSC 35).
   • Where a defendant is precluded by illness or incapacity from attendance at the trial the court may proceed in his or her absence, although a person in those circumstances will have much stronger grounds for resisting the continuance of the trial. (R v Abrahams (1895) 21 VLR 343; R v Sykes and Campi (No 2) [1969] VR 639).
3. In each of these cases, the court has a discretion as to whether the trial should proceed or not. (R v Hayward [2001] EWCA Crim 168; [2001] QB 862 at [22]; R v Jones (Anthony) [2002] EWCA Crim 2949; [2003] 1 AC 1 at [6]). Those exceptions are recognized in s 361 of the Criminal Code, but it is plain from the context that provision has application to trials on indictment and not otherwise. Whatever the nature and scope of the exceptions may be, the common law principle requiring the presence of the accused also has no application to summary proceedings. It is limited in application to indictable offences. (Lawrence v The King [1933] AC 699 at 708; Kenny: Outlines of Criminal Law (Cambridge University Press, 15th ed, 1945). See also Archbold, Criminal Pleading, Evidence and Practice (36th ed), par 546 and cases there cited). There is no "essential principle" that any part of a summary proceeding must be conducted in the presence of the accused. (The abolition of the distinction between felonies and misdemeanours does not bear upon that conclusion. At the time when the distinction between felonies and misdemeanours was maintained, the defendant had to be present at trial of a felony and when judgment was given. In the case of a misdemeanour, this was not necessary but the presence of the defendant was usually required as a matter of practice (R v Harwood (1738) 2 Str 1088), unless the judgment was to be only for payment of a fine (R v Williams (1870) 18 WR 806). The distinction had application only to trials by jury under the process of indictment. It had no application, operation or place in the context of summary jurisdiction under statute.) The governing statutes and the implication of powers regulate the circumstances in which a court exercising summary jurisdiction may conduct proceedings in the absence of the accused.

82. Both R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343 and R v Howson (1981) 74 Cr App R 172 recognise that a trial may proceed even where the accused is temporarily involuntarily absent due to illness.

83. In R v Abrahams (at 346-348), Williams J said:

The primary and governing principle is, I think, that in all criminal trials the prisoner has a right, as long as he conducts himself decently, to be present, and ought to be present, whether he is represented by counsel or not. He may waive this right if he so pleases, and may do this even in a case where he is not represented by counsel. But then a further and most important principle comes in, and that is, that the presiding Judge has a discretion in either case to proceed or not to proceed with the trial in the accused's absence. In the case where the prisoner is not represented by counsel, and waives his right to be present, the Judge would, in all probability, having regard to the principle just stated, that a prisoner ought to be present, exercise his discretion by not proceeding with the trial in the absence of the accused, and if in such a case the prisoner's desire not to be present were occasioned by indisposition, the Judge, if such indisposition was likely to be prolonged, would probably exercise his discretion by discharging the jury. If these principles be the true ones, it is difficult to see, when the accused waives his right to be present, what line can be drawn between cases of misdemeanor and felony, or between cases where the prisoner is out on bail, or in custody, or between cases where the prisoner is defended by counsel or defends himself. The difference in the conditions seems to me only to affect the exercise of the discretion. In cases of misdemeanor, where the accused is on bail and is represented by counsel, the Judge would in all probability proceed with the trial, and so in cases of felony, not capital, under the like conditions. In cases of felony, not capital, and of misdemeanors where the accused is in custody, but represented by counsel, elects to waive his right to be present, the discretion would probably be exercised in the same way; but, on the other hand, in cases both of felony and misdemeanor where the accused is not represented by counsel, the Judge would, in all probability, refuse to proceed with the trial in the absence of the accused, notwithstanding that he waives his right, unless that Judge be satisfied that the prisoner elects to be absent, and absents himself through caprice or malice, or for the purpose of embarrassing the trial. It will thus be seen that in my opinion in all cases whether of felony or misdemeanor, whether the accused be on bail or in custody, whether he be represented by counsel or not, he has a right to be present, subject only to one qualification, and that is, that he does not abuse that right. If he abuses that right for the purpose of obstructing the proceedings of the Court by unseemly, indecent or outrageous behaviour, the Judge may have him removed and proceed with the trial in his absence, or he may discharge the jury, but subject to that qualification the right of being present remains with the accused as long as he claims it. When he waives it, then the discretion of the Judge comes into play. To take an extreme case by way of illustration: suppose an accused person to be out on bail, to appear and take his trial for either a felony or misdemeanour, and that when his trial comes on he is found to have absconded. By so doing, I take it, the accused has clearly waived his right to be present, and the Crown might elect to go on with the trial in the prisoner's absence, but then the presiding Judge has to exercise his discretionary power; if in such a case the accused was not represented by counsel in Court, or even if he were so represented, his presence was necessary for the proper conduct of his defence by his counsel, the Judge would, I apprehend, certainly exercise his discretion by postponing the trial. In short, it seems to me that the Judge's discretion is very much at the root of the whole matter, subject to the accused's right, when he has not forfeited the right, does nothing to forfeit it, or does not waive it, to be present. That discretion should of course be exercised upon right principles, and if not so exercised, the mal-exercise of it, or its mis-exercise, may be reviewed either by way of special case, as in the present instance, or by petition to Her Majesty's Privy Council.

84. This passage from R v Abrahams was approved in R v Jones (No 2) [1972] 1 WLR 887 at 891-892 which in turn was relied upon in Lipohar v The Queen.

85. In R v Howson (at 178-179), Lord Justice Griffiths, who delivered the judgment of the Court of Appeal, referred to the decision in R v Abrahams and the changes that had occurred in the length and complexity of criminal trials. His Lordship referred not only to the paramount duty of a judge conducting a criminal trial to ensure the accused is treated fairly, but also to the duty to the community as a whole to ensure that the administration of justice is not unnecessarily impeded. His Lordship recognised that the discretion to continue a trial in the absence of an accused person was not limited solely to those cases in which the accused had abused the right to be present or had voluntarily agreed to the trial going on in his absence, saying (at 179):

In our view, the discretion is not so limited and, in an appropriate case, the judge has a discretion to continue a trial in the absence of one of the accused through illness. This is a discretion which we would expect to be sparingly exercised and never if the accused's defence could be prejudiced by his absence.

86. Whether or not the exception recognised in R v Howson is applicable in Australia has been left open by courts of appeal: see R v Hallocoglu (1992) 29 NSWLR 67 at 71-72; R v Jones [1998] SASC 7021; (1998) 72 SASR 281 at 296-297.

87. None of these authorities deal with a situation where the accused has been found unfit to plead. Necessarily, such a circumstance will only arise where the accused has been made subject to the jurisdiction of the relevant court because it is only in those circumstances that the question of fitness or unfitness will have been able to have been determined. While in the case of a person who is fit to plead their presence at a criminal trial will generally be considered to be an essential component of a fair trial, that cannot be said to be the case in relation to a person who is unfit to plead. For example, how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1) of the Crimes Act.

88. In New South Wales, s 21(1) of the Mental Health (Forensic Provisions) Act 1990 (NSW) requires that a special hearing under that Act be conducted "as nearly as possible as if it were a trial of criminal proceedings". (This is the same requirement as appears in s 316(1) of the Crimes Act.) It has been held in that context that the reading of the indictment in open court of the charges brought against the accused person is necessary because arraignment in a public hearing is an invariable and essential incident of all criminal trials: R v Zvonaric [2001] NSWCCA 505; 54 NSWLR 1 at [3], [21], [36]-[38]. In that case, Adams J (with whom Spigelman CJ and Sully J agreed on this point) placed significant reliance upon s 56 of the Criminal Procedure Act 1986 (NSW) (now s 130) which provided that the Court had jurisdiction in respect of the conduct of proceedings on indictment "as soon as the indictment is presented and the accused is arraigned". The Crown had submitted that because in the case of a special hearing a person is assumed to have pleaded not guilty, a "trial" was inevitable and arraignment was unnecessary. His Honour said that s 56 was designed to ensure that the identity of the accused and the nature of the charges to be tried were publicly declared and, as a consequence, the charges must be publicly announced and the accused plea must be publicly entered: "The proper procedure for a special hearing is, in my view, no less stringent: the person should be arraigned and the trial judge publicly enter a plea of not guilty." His Honour also expressed the view that the provision (equivalent to s 316(8) of the Crimes Act) that provided that the accused was taken to have pleaded not guilty, only came into effect when the accused was "charged" as part of the arraignment and that it was not sufficient that the charge simply appear in the indictment that was presented. The statutory context in which similar provisions relating to a special hearing appear in the ACT is different in that s 76 of the Court Procedures Act 2004 (ACT) provides that the Supreme Court has jurisdiction in relation to the conduct of a criminal proceeding against an accused for an indictable offence from the time when the Magistrates Court has made an order committing the accused to the Supreme Court: see R v Richardson [2016] ACTSC 22; 307 FLR 8 at [23]- [25]. The difference in the statutory context may be significant in determining exactly what components of a criminal trial will be essential in order to comply with s 316(1) of the Crimes Act. As the submissions of the parties did not extend to consideration of the decision in R v Zvonaric, it is undesirable to attempt to reach a final conclusion on that issue. It is sufficient to say that a formal and public reading of the indictment and identification of the accused may be an essential part of the special hearing process. That may be able to be achieved even if the accused is excused from attending. If the conclusion is reached that a formal arraignment of the accused cannot be done unless the accused appears at the hearing, then the options available to the trial judge would appear to be to either require the accused to attend for the purposes of the arraignment or, alternatively, have him appear by audiovisual link for that purpose.

89. In R v Jones at 297, Lander J (with whom Weeks and Prior JJ agreed) identified the ultimate question arising from the absence of an accused as being whether or not there has been a miscarriage of justice. Unless some practical consequence can be identified as arising from the absence of the accused, it is difficult to see how in the circumstances of this case the absence of the accused might amount to a miscarriage of justice.

90. Finally, it is worth noting that the various guarantees in ss 21-22 of the Human Rights Act 2004 (ACT) would not compel that he be present during a special hearing so long as he has been made subject to the jurisdiction of the Court and is not prevented from attending the hearing.

91. It is relevant to take into account the likely outcome of the proceedings. In the present situation, s 317(3) of the Crimes Act provides that if the judge is not satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged then the judge must find the accused not guilty of the offence charged and the consequences of that finding is the same as if it was made in an ordinary trial. On the other hand, if the judge is satisfied beyond reasonable doubt that the accused did engage in the conduct required for the offence charged then no conviction may be recorded: s 317(4), and the Supreme Court may make orders under s 318(2). Section 318 is applicable rather than s 319 because offences against ss 79, 81 and 92K do not fall within the definition of "serious offence" in s 300(1) of the Act.

(2) The Supreme Court may make the orders that it considers appropriate, including -

• (a) that the accused be detained in custody for immediate review by the ACAT under the Mental Health Act 2015, section 180; or
• (b) that the accused submit to the jurisdiction of the ACAT to allow the ACAT to make a mental health order or a forensic mental health order under the Mental Health Act 2015.

93. It must be noted that s 318(2) is permissive and discretionary ("may make the orders that it considers appropriate, including...") and in that respect is different from s 319(2) which specifies two alternative but mandatory processes ("The Supreme Court must..."). The parties appeared to accept that in the event that the judge at the special hearing was satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence, then it was unlikely, having regard to the personal circumstances of the accused, that he would be required to be detained in custody under s 318(2). Having regard to the permissive and discretionary terms of s 318, it would also be open to the Court to not require the accused even to submit to the jurisdiction of ACAT pursuant to s 318(2)(b). Thus, so far as the likely outcome of proceedings is concerned, if the acts involved in the offences charged were proved they are unlikely to involve any further period of full-time custody.

94. This is relevant to consideration of whether it is essential for a fair trial for the accused to be present during that trial even though he is unfit to plead and also relevant insofar as the public interest in prosecution of the offence may be taken into account in assessing whether or not the proceedings amount to an abuse of process (as to which see the discussion of McDonald v The Queen above at [57]-[64]).

95. The charge of indecent assault under s 81 of the Crimes Act 1900 was in existence up until 27 November 1985. On 28 November 1985, the Crimes (Amendment) Ordinance (No 5) 1985 (ACT) removed the crime of indecent assault and a number of other offences from the statute. In its place a new regime of criminal offences for sexual offending was put in place. This included s 92K "act of indecency with young persons". That section was renumbered in 2001 by the Crimes Legislation Amendment Act 2001 (ACT) to be s 61, the section number which it now bears.

96. The crime of buggery under s 79 of the Crimes Act was also removed and replaced at the same time.

97. So far as ss 79 and 81 of the Crimes Act were concerned, the Law Reform (Sexual Behaviour) Ordinance 1976 (ACT), s 6 provided a limitation period of 12 months in relation to charges for offences against those sections.

98. Because of this limitation period it was not possible to bring proceedings for historical offences against s 81. This changed in 2013 when ss 441 and 441A were inserted into the Crimes Act by the Crimes Legislation Amendment Act 2013 (No 2)(ACT). Those provisions permitted the bringing of charges for offences against provisions which included ss 79-81 and made express that they abrogated any right not to be charged that arose by reason of the expiry of a limitation period. There were qualifications upon the charges which were permitted under the sections, but there were no qualifications that precluded the bringing of the current charges.

99. There was no time limitation with respect of the s 92K offences alleged by Complainant 2. That means they might have been brought at any time after authorities were notified of the allegation.

100. In this case, that means that Counts 1-6, 9-12, 14-16 which related to s 81 were statutebarred prior to 10 December 2013. Count 13, which is a charge of an offence against s 79 of the Crimes Act, could not be prosecuted prior to 10 December 2013. On the other hand, Counts 7 and 8 could be prosecuted from the time of notification to the police.

101. The informations commencing the proceedings were sworn on 6 January 2016. The complaints made by Complainants 5 and 6 were added subsequently as those complainants only first contacted police in 2017.

102. The relevant dates of complaints to police are as follows:

(a) Complainant 1 - 2016;

(b) Complainant 2 - 2008;

(c) Complainant 3 - 2016;

(d) Complaint 4 - 2016;

(e) Complainant 5 - 2017;

(f) Complainant 6 - 2017.

103. Up until 2013, any charge under s 81 would have been met with a defence under s 6 of the Law Reform (Sexual Behaviour) Ordinance. The charges previously brought against the accused in 2007 were charges under s 61 of the Crimes Act (formerly s 92K) and no relevant limitation period applied. (One of the charges appears to have dated from 1981, a time prior to the enactment of s 92K. The evidence does not explain whether this charge was pursued to finality in this form or, if so, how.)

104. It will therefore be observed that there has been minimal delay by the police in bringing proceedings relating to Complainants 1, 3, 4, 5 and 6. So far as Complainant 2 is concerned, a complaint was made in 2008 but this does not appear to have been pursued by police at the time. Having regard to the charges that have ultimately been laid, it can be seen that there was in fact no relevant limitation period in place. The evidence does not disclose the reason for charges not being pursued. There are a variety of possible reasons.

105. There is no specific evidence of prejudice relating to the absence of witnesses or documentary evidence about specific issues (cf TS v R). There is some evidence of possible unreliability in relation to Complainant 4, but the nature of this evidence is that it is tentative, identifying likely fruitful lines of inquiry or crossexamination.

106. Even in the absence of specific evidence, it must be presumed, having regard to the very significant passage of time since events in question, that the defence of the accused will be prejudiced.

107. So far as delay by prosecuting authorities is concerned, the only relevant period of significance is that in relation to Complainant 2. Having regard to the fact that the accused was only diagnosed with dementia in 2010, there is at least a possibility that as at 2008 he would have been able to provide some instructions in relation to those allegations and the passage of eight years after the report to police must be presumed to have caused him some further prejudice.

108. The test to establish that the continuation of the proceedings would constitute an abuse of process is a stringent one. It will only be satisfied in circumstances where it can be said that it would be inconsistent with common humanity for the proceedings to continue. The formulation in R v Edwards requires a conclusion that the continuation of the proceedings "would involve unacceptable injustice or unfairness" or whether the "continuation of the proceedings would be 'so unfairly or unjustifiably oppressive' as to constitute an abuse of process". That conclusion must be reached in spite of any steps that might be taken by the trial judge to ameliorate the injustice, unfairness or oppression.

109. In the present case, it has already been established that the accused is unfit to plead. The basis for that includes that he is unable to follow the course of proceedings or provide any coherent instructions in relation to the events giving rise to the charges. It is therefore not a case where his participation or giving of instructions will be significant.

110. His dementia has not progressed as much as it might have since 2008 and remains in the mild to moderate category. He has had the benefit of support from other members of the Marist Brothers organisation and there was no evidence on the present application to suggest, in terms of mechanical issues of getting from his residence in Sydney to Court or getting to and from Court, that he would not continue to receive that support.

111. He clearly has a constellation of health problems. Those would make it difficult and unpleasant for him to be able to attend a special hearing. Because of his mental condition, he would be likely to suffer increased stress and anxiety as a consequence of the proceedings and that would be likely to elevate his blood pressure and place him at greater risk of a further cerebrovascular event. That is particularly so if he thought that he was required or expected by those representing him to attempt to follow and participate in the proceedings. Having regard to the nature of the hearing, any such requirement or expectation would not be warranted.

112. Any such special hearing would need to be conducted in a manner which sought to accommodate the health conditions of the accused and reduce the prospect of significant adverse health consequences arising from his presence at Court.

113. The accused is presumed to suffer considerable prejudice because of the age of the allegations. It is notable that this case does not have the unusual features of TS v R in relation to the nature of the evidence in the Crown case or the actual prejudice to the accused arising from the loss of evidence. Except in the case of the charges relating to Complainant 2, there has been no significant delay on the part of the prosecuting authorities. I do not consider that, in the context of the other charges and the absence of detailed exploration of the reasons for not pursuing the s 92K(2) charges in relation to Complainant 2 in 2008, the delay in bringing those charges warrants a permanent stay of them. The trial judge will clearly need to give himself or herself appropriate directions and warnings in relation to the evidence having regard to the age of the allegations.

114. For the reasons which I have given above, is not an essential component of the conduct of a special hearing that he be present for either any part of or the whole of that hearing. While the question of his attendance is a matter that would need to be addressed by the trial judge, I do not consider that it would be inconsistent with the statute to excuse the accused from attending the special hearing. If it is an essential aspect of a special hearing that notwithstanding his unfitness to plead he be present for his arraignment, then that could occur without the necessity for him to attend the whole of the trial. Excusing the accused from attendance at the whole or part of the trial would significantly ameliorate the burden of the continuation of the special hearing upon him. Because the trial is to be conducted by judge alone rather than a jury, the risk that a jury might draw some adverse inference from his non-attendance has been removed.

115. Having regard to the options available following a special hearing if the acts constituting the offences are proven beyond reasonable doubt, there is a low probability that the outcome of the proceedings would involve any custodial order. While in one sense this can be seen as reducing the public interest in proceeding with the prosecution, that is only one aspect of the public interest in the conduct of criminal proceedings by way of a special hearing. It does not affect the public interest in either acquitting the accused of the relevant charges or vindicating the rights of the community and the victims of the alleged offences if they are established beyond reasonable doubt.

116. In those circumstances, I am not satisfied that the accused has proved that the special hearing would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. Therefore, the application must be dismissed.

117. The order of the Court is: The Application in Proceeding dated 12 October 2017 is dismissed.

I certify that the preceding one hundred and seventeen [117] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.