R v Koschier

District Court of NSW|2023-07-21

Introduction Evidence Background The Crown case The complainant - AM The complainant - FC The applicant's arrest The applicant's contentions Relevant principles The applicant's impaired cognitive functioning The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Consideration Delay in the prosecution Consideration The failure to bring charges or properly investigate the allegations in 1997 Consideration Conclusion Orders

Evidence

Admitted on behalf of the applicant was the following: 1. Ex 1 - Report of Professor Rosenfield dated 10 February 2023 2. Ex 2 - Supplementary report of Professor Rosenfield dated 27 May 2023 3. Ex 3 - Affidavit of Joyce Koschier dated 10 February 2023 4. Ex 4 - Affidavit of Taylor Goodrum dated 13 February 2023 5. Ex 5 - Statement of Detective Senior Constable Melissa Velisavljevic dated 13 March 2023 6. Ex 6 - Davidson Family Tree 7. Ex 7 - Statement of SM dated 21 April 2023 8. Ex 8 - Statement of CD1 dated 12 April 2022 9. Ex 9 - Statement of AM1 dated 9 December 2022
The affidavit of the applicant's solicitor Taylor Goodrum sought to articulate the forensic prejudice by reason of the delay in the prosecution. In particular at paragraphs [19] - [45], the solicitor alleged that the unavailability or death of witnesses had led to the applicant being disadvantaged by reason of the delay. Surprisingly, these paragraphs were not objected to by the Crown. They were clearly inadmissible. As much was conceded by counsel for the applicant on the part heard hearing on 21 July 2023. Counsel conceded that what was purported to be evidence was no more than a submission. The practice of solicitors swearing affidavits, purportedly on the premise that it is evidence when it is no more than a submission, should be discouraged. Given the concession by counsel for the applicant I have disregarded those paragraphs of the solicitor's affidavit as evidence in support of the application.
Admitted on behalf of the Crown was the following: 1. Ex A - Statement of FC dated 9 April 1997 2. Ex B - Statement of FC dated 9 June 2021 3. Ex C - Statement of AM dated 11 September 1997 4. Ex D - Statement of AM dated 9 July 2021 5. Ex E - Crown Case Statement 6. Ex F - Expert Report of Dr Olav Nielssen

Background

The applicant was born in November 1935 and is now aged 87. The two complainants, AM and FC, are first cousins, their mothers being sisters. The applicant is their uncle, being married to the complainants' biological auntie. In respect to AM, the offences are alleged to have occurred between 1961 and 1968. In respect to FC the offences are alleged to have occurred between 1962 and 1976. Accordingly, the offences are alleged to have occurred between 47 and 62 years prior to the stay application.
FC first reported the matter to police in April 1997 and made a statement shortly thereafter. In August 1997 the applicant was first interviewed by police in which he denied the allegations made by FC. AM first reported the allegations to police in September 1997 and made a statement at that time. However, in April 1998 investigating police suspended their investigations and no charges were laid against the applicant.
The investigation was reopened following further statements made by FC and AM in June and July 2021 respectively. Statements were also obtained from other witnesses. On 28 September 2021 the applicant was arrested and charged.
An application for a permanent stay was deferred to enable the court to determine the applicant's fitness to stand trial. This followed expert reports obtained on behalf of the applicant (Adjunct Professor Tuly Rosenfield - Consultant Geriatrician and Physician) and the Crown (Dr Olav Nielssen - Psychiatrist). The experts essentially agreed that the applicant was unfit to stand trial on the indictment. The applicant's condition was permanent and irreversible and accordingly the applicant would not become fit within 12 months.
On 27 March 2023 Judge Hopkins found, in accordance with s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act), that the applicant was unfit to stand trial on the indictment and would not become fit within 12 months. The Crown subsequently determined that the applicant be tried by way of special hearing in accordance with s 56 of the Act. Following that determination, the applicant pursued the application for a permanent stay. It is conceded that the special hearing will proceed by way of judge alone.

The complainant - AM

AM recalled that she would see the applicant and her auntie around 3 to 5 times per year, normally around the Christmas period when the families would go to each other's houses. When she was somewhere between the age of 9 and 11 the applicant and her auntie visited their house. There were people in the lounge room and also people in the dining area. She walked into the kitchen inside the home, located between the dining and lounge room, when the applicant scooped her up, placing one hand underneath her bottom and one under her waist. Whilst the applicant was holding AM in the air he put his finger inside her vagina. AM recalled the applicant pushing his finger further inside her vagina and moving it backwards and forwards. He also tried to kiss AM on the mouth, pushing his tongue into her mouth (Count 1). The complainant also recalled that there were at least two or three other occasions when the applicant tried to kiss her by putting his tongue into her mouth.
On another occasion her family visited the applicant's home in Revesby. At the back of the applicant's house there was an extension which later became a lounge room and a bedroom. There was a garage on the right side at the back of the property which had been converted into a flat. When AM arrived at the applicant's home, whilst the families were saying hello to each other, the applicant pushed his lips against hers and pushed his tongue inside her mouth (Count 2).
On another occasion, when AM was about 11 or 12, the applicant, his wife and family came to her home to visit. Whilst the families were greeting each other the applicant approached AM and put his lips on hers and she felt the applicant attempting to push his tongue into her mouth. AM kept her lips together and pulled away, running to her bedroom where she hid in the wardrobe until the applicant and his wife left their home (Count 3). After the applicant had left, AM came out of the wardrobe and her mother asked why she was hiding. AM told her mother that the applicant was trying to kiss her and put his tongue down her throat. Her mother said that if it happened again she was to come and tell her and she would have a word to the applicant's wife.
In 1997 AM received a phone call from her cousin FC who said that the applicant had been molesting her for years and wanted to take him to court. During the phone call AM told FC that the applicant had tried to stick his tongue into her mouth and had put his finger into her vagina. Whilst she was prepared to support FC by giving evidence in court, at that stage she did not want to press charges. AM said that she told no one else other than her mother, her sister Christine and FC about what had happened.
In September 1997 AM attended Bankstown Police Station, detailing the alleged assaults in a record of interview. Sometime in that same year, AM received a phone call from the applicant's wife enquiring what she was doing in respect of a police statement and why she was doing it. During that phone call AM told her what the applicant had done. In 2021 AM received a phone call from her cousin CD1 who told her that she was going make a statement to police in relation to the applicant. On 9 July 2021 AM attended Bankstown police station and provided a further statement to police.

The complainant - FC

FC recalls that when she was about 3 to 4 years of age the applicant and his wife visited their home. FC was playing outside near the garage with a friend. The applicant was in the garage standing near the front entrance when he called FC and her friend into the garage. The applicant unzipped his trousers and took his penis out. Whilst her friend ran off, the applicant grabbed FC and held her. The applicant grabbed FC's hands which he rubbed up and down the shaft of his penis (Count 4). The applicant's penis was just a little higher than her forehead and it touched her head when the applicant pulled her closer to his groin. FC recalled the applicant then sticking his penis inside her mouth (Count 5). He then put his penis back into his pants, crouched down next to FC, holding her by the shoulders with his face level with hers and told her that she was a good girl, and that good girls don't tell secrets. As the applicant and his wife were leaving FC's home the applicant stuck his tongue inside her mouth as part of a kiss (Count 6).
After this incident FC recalls that every time the applicant kissed her he would stick his tongue inside her mouth. FC's mother would insist that she kiss the applicant despite her reticence to do so. This kissing occurred mostly at the front door of FC's home and in front of everyone. No matter how tightly she kept her lips sealed, the applicant always was able to push his tongue between her lips and down her throat.
In September 1964, extensions to FC's home in Gymea were approved. She could not recall when the works commenced but recalled on one occasion playing on the bearers and joists and jumping between the pillars where the extension was being built. The applicant and his wife had attended for afternoon tea which was a frequent occurrence most weekends throughout FC's childhood and teenage years. The applicant called the complainant down to the garage, telling her she was growing up to be a big girl and that one day she would have lovely breasts. The applicant then put his hand into FC's underwear and touched her between the legs (Count 7). The applicant then took FC's hand and made her touch his penis (Count 8). The applicant told FC that she was a good girl, and she then ran off.
Between September 1964 and February 1966, when FC was about six or seven years old, the same pattern continued. The applicant would find FC alone - either at her house or when she visited the applicant's home - and touch her whilst making suggestive comments.
On 21 April 1967, when FC was aged eight, the applicant and his wife were visiting. FC was using the toilet in the garage at her home. When she finished using the toilet she opened the door and saw the applicant, who took her back into the toilet area. He took his erect penis out and made her touch it (Count 9). The applicant then rubbed his hands over FC's chest on the outside of her clothing and fondled her breasts, telling her that they were getting bigger and that made him happy (Count 10).
Between 1968 and 1971, when FC was aged between 9 and 11, the applicant and his wife would regularly attend her home. Whilst FC would hide in her bedroom the applicant would enter her room, close the door, slip his hand into her underwear, and insert his finger into her vagina. The applicant would wiggle his finger around inside FC's vagina and reach up to her chest and fondle her breasts. The applicant would comment on what a good girl she was. FC also recalls the applicant would at times come into her room and put his hand under her top and fondle her breasts. If FC had her Barbie dolls with her the applicant would touch the chest of the dolls and the complainants at the same time, telling her one day that she was going to have nice breasts like the doll. The applicant would come into FC's room at times when everyone else was busy. The applicant often told FC that he wanted to photograph her naked in his studio, referring to a temporary building adjoining the applicant's garage, known within the family as the "Tempry".
In either winter or spring of 1971, when FC was aged 12, she got her first period. She returned home and told her mother. Later that day FC and the rest of her family attended the applicant's home for lunch. FC's mother told the applicant's wife that FC had started menstruating, a conversation which was overheard by the applicant. Later that day, FC's parents and the applicant's wife went to her uncle's home a few streets away. FC and the other children were left in the applicant's care and were sitting in the lounge room watching television. The applicant came into the room and leaned towards FC saying "so you're a woman now". The applicant then took FC to the Tempry room while the other children continued to watch television. The applicant took FC by her hand and told her he was going to make her a woman. He led her to the Tempry structure which FC recalled contained a laundry tub, a twin washing machine and a bench. It also contained an old lounge or single bed. The applicant placed FC on the bed and pushed her down so that she was lying on her back. He unzipped his trousers and laid on top of FC, removing her underwear and pushing her top up. The applicant had his pants below his knees, with his hands at either side of her so that he was propped up. The applicant fondled FC's chest with his hands under her singlet. The applicant pushed his erect penis between FC's legs and into her vagina. He then pushed his penis into her anus. The applicant was not wearing a condom and continued to move up and down across her body, sliding his penis in and out of FC's anus. The applicant then rubbed his penis in between FC's thighs and between her legs. He told FC that he wanted so much "to go inside" her. The applicant then pulled his penis out of FC's groin area and ejaculated all over her thighs and legs before laying heavily on her for a moment. Whilst he ejaculated, the applicant had his head down beside FC's left ear and she could hear him groaning. The applicant then grabbed a towel and wiped his ejaculate off FC and himself before pulling his trousers up (Count 11).
Between 1972 and 1975, when FC was between 13 and 16, the applicant would touch FC's breasts by slipping his hand under her tops and bras in private. In public he would press up against FC and hold her bottom for periods of time. He continued to slip his tongue inside FC's mouth when she was required to kiss him goodbye.
On either Christmas or Boxing Day 1976, when FC was 17, the applicant and his wife attended for lunch. Whilst the family were crowding around the table to get food the applicant grabbed FC's bottom like he usually did. FC pulled away from the applicant and told him in a loud voice in front of the family that he "shits" her. The applicant never touched FC again after this incident (Count 12).
In 1983, when FC was aged 24, she was watching the "Mike Walsh" show on television when the topic of molestation and sexual assault arose. FC immediately called her mother and told her that the applicant had molested her. In response to a query from her mother, FC said the last time it occurred was when she was 17. FC's mother told her that was seven years ago and to forget it. After that date FC also phoned her sister-in-law, telling her that the applicant had molested her when she was a little girl.
In 1992 FC, at the age of 32, wrote a letter to the applicant and one to his wife to which she never received a response. In the letter to the applicant's wife, FC alleged that from the age of 3 to 17 the applicant had molested her. The reason why she did not tell anyone before was that she was scared the applicant's wife would divorce him, and to a child, this was the "worse thing in the world". FC said that she was undecided "whether it's worth going through all the filth and poison from 14 years of molesting", although if she thought the applicant may still be engaged in such activity she would have no choice "but to stop him".
In the letter to the applicant she told him that she had reported the molestation to police and that she knew the applicant had attempted to molest her cousins. She was undecided as to whether to press charges and the police were waiting for her to decide. She further said in the letter: "Three years old Tony, I was three years old when you dragged me into the garage and pulled your pants down and made me and [S] fondle you… Every time I would hear you were coming to visit I would hide in my room, but my door would not lock, and you would come in and fondle me, touching my body as if it was yours to touch… I was 17 before I had the courage to tell you to get off. I remember vividly the day you crouched down next to me and told me that "I'm a good girl and good girls don't tell secrets, and this is our little secret"… Your secrets out - I was a good girl and I TOLD. I am not your victim anymore. You're dead in my eyes. I will not protect your secrets anymore."

The applicant's arrest

The applicant was arrested by police in 1997. During a voluntary electronically recorded interview the applicant denied all allegations and refused to answer any further questions. He was ultimately released and not charged.
In early 2020, FC attended a videoconference with a psychologist whom she told about the molestation. On 28 April 2021 FC was contacted by her cousin and the pair discussed reporting the applicant to the police again. On 9 June 2021 FC attended Bankstown police station providing an additional statement in relation to the matter. The statement continued on 23 January 2021.
On 28 September 2021 the applicant was arrested and declined to participate in an electronically recorded interview.

The applicant's contentions

The applicant contends that a permanent stay ought to be granted on the following grounds: 1. The applicant's impaired cognitive functioning is such that his ability to engage in the criminal process is irredeemably compromised. 2. The substantial delay between the date of the allegations and the trial have resulted in presumptive and specific prejudice incapable of being ameliorated by legal direction. 3. A decision not to pursue a prosecution in 1997, following the initial complaint, resulted in: 1. an inherent unfairness in re-instigating a prosecution in 2021; and 2. a forensic disadvantage to the applicant by reason of the loss or destruction of evidence.

Relevant principles

It is well-established that a permanent stay should only be granted in an extreme or exceptional case: Barton v R [1980] HCA 48; 147 CLR 75 at 111; Jago v the District Court of New South Wales [1989] HCA 46; 168 CLR 23 at [34]. There is a "high bar" for the granting of a permanent stay: R v Moore [2015] NSWCCA 316 at [176]. The onus on the applicant for a stay is a heavy one: Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256 at [9]; TS v R [2014] NSWCCA 174 at [1] per Leeming JA and at [64] per Bellew J. The standard of proof is on the balance of probabilities.
The relevant test is articulated by the High Court in R v Edwards (2009) 83 ALJR 717 at [23], referring to the earlier decision of the High Court in Walton v Gardiner (1993) 177 CLR 378: "Whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or fairness or whether the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process."
It is necessary to consider whether the use of the courts procedures would be substantially unfair to the accused: Moti v R [2011] 245 CLR 456 at [10].
As the High Court observed in Edwards, the test is whether the proceedings would involve an unacceptable injustice or unfairness rather than could involve such an injustice or unfairness: at [23] - [24].
There must be a fundamental defect going to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve its unfair consequences: Barton at 111; Jago at 34.
The concept of fairness in the context of a stay requires more than a consideration of fairness to the accused. As Bathurst CJ observed in R v RD [2016] NSWCCA 84 at [56]: "In Walton v Gardiner, Mason CJ, Deane and Dawson JJ at [26], referring to Jago, stated that the question of whether criminal proceedings should be permanently stayed as an abuse of process falls to be determined by a weighing process involving the subjective balancing of a variety of factors and considerations including the requirement of fairness to the accused, the legitimate public interest in the disposition of charges for serious offences and the need to maintain public confidence in the administration of justice."
As Mason CJ observed in Jago at 33: "The test of fairness which must be applied involves a balancing process, for the interest 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". (Citations omitted).
This concept was restated by the High Court in Dupas v R [2010] HCA 20; (2010) 241 CLR 237 at [37]: "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." (Citations omitted).
More recently Bell P (with whom Leeming JA and Emmett AJA agreed) in Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102 listed the following propositions derived from the relevant authorities at [71] (citations omitted): 1. The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant. 2. A permanent stay should only be ordered in exceptional circumstances. 3. A permanent stay should be granted when the interests of the administration of justice so demand. 4. The categories of cases in which a permanent stay may be ordered are not closed. 5. One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive. 6. The continuation of proceedings may be oppressive if that is their objective effect. 7. Proceedings may be oppressive where their effect is "seriously and unfairly burdensome, prejudicial or damaging". 8. Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party. 9. Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people.

The applicant's impaired cognitive functioning

The applicant was medically assessed at the request of his solicitors by Adjunct Professor Tuly Rosenfield on 23 January 2023. The assessment involved an initial interview with the applicant on his own and a separate private interview with his wife. Professor Rosenfield also reviewed the applicant's medical records. The report recorded a medical history including prostate disease (requiring frequent toileting through the night), worsening memory, congestive cardiac failure complicated by high blood pressure and raised cholesterol, sciatica with increasing difficulty with gait and balance, and gastro-oesophageal reflux (requiring antacid medications).
The applicant's wife described her husband as acting "like a child who gets lost" and sleeps all the time. She reported that the applicant did not seem to comprehend the legal proceedings and "mis-remembered" things. The statement from the applicant's son observed a mental decline over the few years prior to assessment. He did not follow conversations well and would say things that were not relevant or were related to a different subject; he did not use the right words to describe things. He forgot things or remembered them incorrectly.
On examination the applicant was alert and orientated. He was at times vague in his responses, noting that his wife would be able to answer the examiner's questions. He was able to walk unassisted although had some difficulties in doing so. His balance was poor, swaying considerably when his eyes were closed. On a "Mini Mental State Examination" the score was consistent with prominent problems in short-term memory and concentration. He was unaware of events, forgot the examiner's name and was not able to indicate the months in reverse.
Professor Rosenfield observed that the history and examination revealed the presence of marked systolic hypertension, the presence of neurological signs of poor balance and asymmetrical reflexes, and neurological signs indicating the presence of brain and prominent frontal lobe disease as well as reduced short-term memory and executive impairment. The history and findings indicated the likelihood of vascular brain disease, impaired executive function as well as mild to moderate dementia. The applicant had limited understanding of the nature and implications of the legal proceedings. He was unlikely to be able to recall events in the past and had impaired short-term memory. He was less able to understand and be made aware of and then recall the nature and details of the proceedings or testimonies and understand and properly consider the implications of legal advice and his testimony. The applicant's dementia was mild to moderate, irreversible, and likely progressive. It affected his comprehension, reasoning, judgement, learning and memory. In the context of the criminal prosecution Professor Rosenfield was of the opinion that the applicant's ability to maintain concentration and retain his memory and attention of discussions, advice, testimony and questioning for an extended period of time would be very limited.
Professor Rosenfield provided a supplementary report in response to a report commissioned on behalf of the Crown from Dr Nielssen. He restated the opinion contained in his primary report that the applicant's impairments in reasoning and judgement were associated with brain disease and disease of the frontal lobes associated with impaired executive function. His ability to understand and reason was, in the words of his wife, "like a child".
He agreed with the opinion of Dr Nielssen that adjustments to the court procedures would not alleviate, account for, or overcome the cognitive impairments from which the applicant suffered. The brain disease and dementing illness from which the applicant suffered was progressive in nature and would invariably worsen with time. Professor Rosenfield further observed that the applicant's condition of raised blood pressure was likely to be resistant to treatment. This, as well as his overall health and cognition, was likely to deteriorate with the stress and anxiety associated with a special hearing process. The various conditions from which the applicant suffered was likely to reduce life expectancy by no less than 50% and accordingly his probable life expectancy was likely be less than 2.79 years.
Dr Olav Nielsson assessed the applicant at the request of the Crown by way of audio-visual link on 13 March 2023. When the applicant was asked about the charges, whilst stating that he could not understand what it was, he appreciated that they were charges of sexual offences involving two of his nieces by marriage and that they were supposed to have taken place "58 years ago… somewhere in the 60's". The applicant described his more recent mental function as "a little bit drifty with my age". He acknowledged in respect to memory that he forgets his wallet when he goes to the shops or when he goes to the garden he forgets what he is going to do. He described troubles with walking as a result of his back. He was aware that he was represented by a lawyer and barrister in the criminal proceedings, although he was unsure as to which court the proceedings would be conducted, although he assumed it would be "in the higher one". He demonstrated some understanding of the function of the jury and that they would "listen to all the evidence and decide one way or the other". He confirmed his medical problems included back pain resulting in a number of recent falls.
The applicant's son told Dr Nielssen that there had been a decline in his father's memory and physical health, particularly in the previous year. He was unsteady on his feet. However, his father was able to drive locally, supervised by his mother, who had better cognitive function. The applicant's son considered that his father would not be able to comprehend what was happening in the trial given his short-term memory and confusion about details. His father demonstrated characteristics of disinhibition whilst in the public.
On mental state examination the applicant often asked for questions to be repeated which appeared to be due to impaired registration of questions rather than poor hearing. He called out at times to his wife or son for assistance with questions despite being reminded that it was an assessment of his own performance. A formal screening test of the applicant's cognitive function was not attempted due to the way the interview was conducted. He had some knowledge of recent events although at times was mixed up as to location and was unable to provide detail. He was able to maintain attention whilst spoken to and his answers to questions were generally appropriate. However, his retrieval of information and performance in a brief screening test of memory and concentration was quite impaired.
Dr Nielssen diagnosed the applicant as suffering dementia, or a permanent and significant decline in several aspects of cognitive functioning. The corroborative accounts of the applicant's wife and son included fatigue, loss of balance, a decline in memory function and the inability to communicate as well as a loss of self-awareness. Cognitive performance and sensitive tests of memory and concentration during the recent interview were consistent with the presence of dementia.
Dr Nielssen agreed with Professor Rosenfield as to the applicant's diagnosis and the effect of his condition on his ability to participate in a trial. He concluded that the applicant was unfit for trial according to the criterion s 36 of the Act "on the basis of the effect of his cognitive function on his ability to follow any proceedings, provide reliable instructions to his legal representatives, and on his ability to give coherent evidence on his own behalf". It was considered that the applicant's condition was unlikely to improve sufficiently to be considered fit for trial.

The Mental Health and Cognitive Impairment Forensic Provisions Act 2020

As previously noted, in the event the permanent stay application is unsuccessful, the applicant will proceed to trial by way of a special hearing in accordance with s 56 of the Act.
Section 54 of the Act sets out the nature of a special hearing: In this Act, a special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged.
Section 56 of the Act provides the procedure for special hearings including the following: 1. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings although the court may, if it thinks appropriate, modify the court processes to facilitate the effective participation by the defendant in the special hearing (s 56(1) and (2)). 2. The defendant is to be represented by a legal practitioner and the fact the defendant has been found unfit to be tried is presumed not to be an impediment to the person's representation (s 56(3) and (4)). 3. The defendant is taken to have pleaded not guilty and may raise any defence that could be properly raised if the special hearing was an ordinary trial (s 56 (5) and (6)). 4. Whilst the defendant is entitled to give evidence the court may permit the defendant not to appear or exclude the defendant from appearing if the court thinks it is appropriate and the defendant's legal representative agrees (s 56 (7) and (8)). 5. The hearing is to proceed by way of judge alone unless an election to have the matter determined by a jury is made by: 1. the defendant and the court id satisfied the defendant has sought, received and understood advice about the election from a legal practitioner, or 2. a legal practitioner representing the defendant, or 3. the prosecutor.
Section 59 of the Act provides that the verdicts available at a special hearing include: 1. not guilty of the offence charged, 2. a special verdict of act proven but not criminally responsible, 3. that on the limited evidence available, the defendant committed the offence charged, 4. that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged.
Section 62 of the Act provides that a verdict at a special hearing that on the limited evidence available the defendant committed the offence charged, or an offence available as an alternative to the offence charged: 1. constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates, and 2. is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and 3. is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation.
Section 63 of the Act provides for penalties after a finding of guilt as follows: (1) Application of section This section applies if a court finds at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged. (2) Limiting terms If the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the court must nominate a term (a limiting term) that is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances. (3) Other penalties and orders If the court determines that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings. (4) The penalty or order is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings. (5) Factors for consideration in determining penalty Without limiting subsection (2) or (3), in determining a limiting term or other penalty, the court - (a) must take into account that, because of the defendant's mental health impairment or cognitive impairment, or both, the person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and (b) may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and (c) must take into account periods of the defendant's custody or detention before, during and after the special hearing that related to the offence. (6) Notice to Tribunal where no limiting term imposed If the court indicates that it would not have imposed a sentence of imprisonment in respect of a defendant, the court must notify the Tribunal that a limiting term is not to be nominated in respect of the person.

Consideration

The Crown fairly acknowledged that the cognitive health of the applicant was a matter to be taken into account in deciding whether to grant a permanent stay, and that his infirmity is to be given its full weight on the stay application (Crown submissions at [39] - [40]). Further the Crown accepts that it is necessary for the court to consider the combined circumstances of the applicant's mental infirmities and the disadvantages arising from the delay in considering whether such circumstances produce an unacceptable unfairness to the applicant (Crown submissions at [40]).
However, the Crown contends that these issues need to be considered bearing in mind the applicant is to be tried by way of a special hearing; that the principles enunciated by the High Court in Subramaniam v R [2004] HCA 51, as recently applied by the New South Wales Court of Criminal Appeal in Kitchingman v R [2023] NSWCCA 4, must be followed.
The applicant contends that the decision of the High Court in Subramaniam is distinguishable on the facts of the present application, and that the Court in Kitchingman incorrectly applied Subramaniam on facts not dissimilar to the present application. Whilst making such a submission, Counsel for the applicant properly conceded that this court was bound to follow Kitchingman in its interpretation and application of Subramaniam.
In Subramaniam the appellant was charged with giving false evidence with intent to pervert the course of justice, and making a false declaration, arising from a red light camera detected traffic offence. The jury in the first trial was discharged for failing to reach a verdict. The appellant's mental health deteriorated resulting in an application for a permanent stay which was rejected at first instance and on an interlocutory appeal. The appellant's prosecution ultimately proceeded by way of a special hearing following a finding by the Mental Health Review Tribunal that the appellant was not fit to be tried by reason of a moderate intellectual disability. At the commencement of the special hearing a further application was made for a permanent stay by reason of the appellant's mental impairment, supported by psychiatric opinion. The stay application was refused, and the jury ultimately returned a verdict of guilty in relation to the charge of making a false statutory declaration.
The proceedings were conducted pursuant to the Mental Health (Criminal Procedure) Act 1990, the predecessor to the Act governing the special hearing in this application. Whilst the central question for determination by the High Court was whether the trial judge had failed to give adequate directions regarding the conditions and procedures of a special hearing, it also considered whether the trial judge had erred in failing to stay the proceedings. Unlike the present application, or for that matter the facts in Kitchingman, the only fact relied upon in the stay application was the appellant's deteriorating mental health. There was no claim of unreasonable delay in the prosecution of her case.
The Court considered the stay application in the context of a trial proceeding by way of special hearing, observing at [28]: "Stays in the context of the Act: One important purpose of the Act is an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end. It is also no doubt another purpose of the Act that a special hearing actually take place, and that victims be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done. This purpose is secured not only by the holding of the special hearing, but also, in an appropriate case, by the pronouncement of a "limiting term" of imprisonment that would have to be served if the person had been tried in the normal way. It is self-evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings, will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason to construe and apply the Act otherwise than according to its tenor."
The Court observed that a fundamental difficulty for the appellant's contention was "that the Act assumes as a basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves".
The Court then said the following at [31]: "A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it "would be out of accord with common humanity" to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed." (citations omitted)
Following a consideration of the general principles applicable to a stay application discussed in Walton v Gardiner, the Court rejected the ground of appeal relating to the stay. In so doing however the court observed at [35]: "This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave."
In Kitchingman the applicant for leave to appeal was charged with one offence of buggery, alleged to have occurred in 1977/1978. The applicant was found unfit to be tried in circumstances where he was aged 87 and suffering from Alzheimer's dementia and in poor physical health. The applicant had contended that a special hearing would be manifestly unfair as a result of a combination of factors, namely: 1. The effect of the delay in bringing the matter to the attention of investigating authorities; 2. The loss of evidence and witnesses leading to a forensic disadvantage was incurable; 3. The applicant's degree of cognitive impairment and physical infirmity; and 4. His general inability to raise a defence.
The trial judge had observed that in respect of the applicant's physical health there had been a steady decline over the previous 12 months, as was expected with chronic renal failure, dementia, and old age. Further, his weight was declining and oral intake poor. He was in the palliative stage of his illness and recovery was not expected.
The evidence relied upon by the prosecution in the trial was limited primarily to the evidence of the complainant and the applicant's pleas to offences of indecent assault in relation to another boy with whom he had had contact in similar circumstances.
The Court of Criminal Appeal rejected any ground of appeal relating to the finding of the trial judge as to forensic disadvantage. Further, the Court rejected the applicant's complaint in respect to the alleged failure of the trial judge to acknowledge the effect of the dementia in circumstances where the trial was to proceed by way of a special hearing. However, it was acknowledged that the issue of the special hearing may inform the further ground of appeal that the decision of the trial judge was unreasonable.
Having referred to the judgment of Bell P in Moubarak, Basten AJA (with whom Dhanji J and RA Hulme AJ agreed) observed that whilst that was a civil claim, it involved similar issues as those before the Court on the appeal. However, his Honour then said the following at [23]: "Despite the factual similarities, there is an important distinction between civil proceedings and the present case. The availability of the process of special hearings with respect to an accused who is not fit to stand trial necessarily engages a different criteria." (emphasis added)
In so doing his Honour referred to the judgment of the High Court in Subramaniam at [28]. His Honour thereafter observed that "in substance, the applicant's case must turn upon whether his current requirement of care and treatment would make it an affront to his humanity to allow the trial to continue."
Counsel for the applicant contended that the Court in Kitchingman incorrectly applied the common humanity test articulated in Subramaniam. It was contended that the common humanity test was only applicable where the sole ground for a permanent stay was the applicant's incapacity giving rise to the need for a special hearing. Put another way, the common humanity test was inapplicable where an applicant relies additionally upon forensic disadvantage arising from delay.
I do not accept the applicant's submission. Whilst acknowledging the appellant in Subramaniam only relied upon her deteriorating mental health, no such distinction, as contended for by the applicant is made by the High Court. The Court in Kitchingman applied the common humanity test in the face of multiple grounds for a stay including forensic disadvantage arising from the delay in the prosecution.
In those circumstances the accused's impaired cognitive function must be considered in the context that the trial will proceed by way of a special hearing, noting the purposes of the Act include: 1. an ameliorative one, giving the accused unfit to be tried in an orthodox way, the opportunity of being acquitted so that any possibility of legal proceedings against the accused of any kind may be brought to an end; 2. a special hearing actually take place, affording the victims of crime an opportunity to see that a form of justice, albeit imperfect, has been done; and 3. in an appropriate case, by the pronouncement of a 'limiting term' of imprisonment that would have to be served if the accused had been tried in a normal way.
The evidence establishes that the applicant suffers from various medical ailments not the least of which is a progressive brain disease resulting in deteriorating cognitive impairment. Further, the applicant suffers with significantly raised blood pressure. It is the opinion of Professor Rosenfield that the applicant's overall health and cognition is likely to deteriorate with the stress and anxiety associated with the special hearing process.
The special hearing self-evidently takes into account the applicant's cognitive impairment. Whilst it must be acknowledged that the process may result in further deterioration of his condition, the evidence does not elevate the risk, because of a special hearing proceeding, to that of "grave". The applicant's condition does not fall within the category of a "rare" case and is not such as to provide an "overwhelming reason for not allowing the special hearing to proceed": R v WRC (2003) 59 NSWLR 273 at [59] per Spigleman CJ (Dunford and Hidden JJ agreeing).
In the circumstances, I am not satisfied that it would be out of accord with common humanity to allow the matter to proceed in the face of the applicant's cognitive dysfunction/impairment and other medical ailments.
However, as contended by Counsel for the applicant, determination of whether a permanent stay should be granted is not to be undertaken in a bifurcated fashion, in that it is necessary to consider all the circumstances of the prosecution, including the consequences of the substantial delay in the prosecution of the applicant.

Delay in the prosecution

Counsel for the applicant contended that on the unique facts of the case the consequences of the delay has resulted in presumptive and specific prejudice.
In respect to presumptive prejudice, Counsel relied upon a decision of the Court of Appeal of Victoria in Lucciano v R [2021] VSCA 12; (2021) 287 A Crim R 529 in which the court cited with approval decisions in Morton v R (2020) 281 A Crim R 307 and McGee v R [2020] VSCA 146. Relevantly, where the delay in prosecution was considerable (in those cases exceeding 50 years) it was not necessary for the applicant to be able to identify the evidence that had been lost in order for that loss to bear on the question of whether a fair trial can be had.
Further, the applicant relied upon the judgment of Adams J (with whom Hodgson JA and Greg James J agreed) in R v Littler [2001] NSWCCA 173; 120 A Crim R 512 in which his Honour referred to the "reasonable possibility" of evidence which might have otherwise been available to assist the applicant in his defence but for the passage of time. Accordingly, it was the submission of counsel for the applicant that it was unnecessary to establish actual prejudice by reference to specific evidence unavailable by reason of the delay.
These statements of principle need to be considered in the context of an established line of authority that the mere unavailability of evidence by reason of delay does not of itself translate into an unfair trial such that proceedings need to be stayed: R v Adler (unreported) NSWCCA 11 June 1992 per Gleeson CJ; R v David Anthony McCarthy (unreported) NSWCCA 12 August 1994 per Gleeson CJ at 11 - 13; R v Tolmie (unreported) NSWCCA 7 December 1994 per Hunt CJ at CL at p 5.
In R v Edwards [2009] HCA 20; 255 ALR 399, the High Court observed at [31]: "…Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair."
The Court cited with approval the judgment of Mason CJ in Jago at [34] that "an accused person seeking a stay must be able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute", and Brennan J at [47] that "the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed".
In Moubarak Bell P, citing with approval Gleeson CJ R v McCarthy, observed at [89]: "In the context of discussing the possibility or otherwise of a fair trial, it should be noted that a fair trial is not synonymous with a perfect trial … So, too, the absence of a witness or witnesses who may be regarded by a party as important, whether through death, illness, loss of memory or inaccessibility … will not mean that a fair trial cannot be obtained."
His Honour further observed at [90] that similar observations have been made in respect to the loss or unavailability of other evidentiary material.

Consideration

Ultimately it is necessary to consider whether the unavailability or loss of evidence by reason of the delay is such that the continuation of the prosecution would involve an unacceptable injustice or unfairness or be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
The applicant contends, in respect to the complainant AM, that the death of her mother in 2015, without a statement having been obtained from her, has resulted in significant forensic prejudice.
In a record of interview in September 1997 AM recounted an occasion, the subject of Count 1, somewhere between the ages of 7 and 13, when the applicant picked her up in the kitchen and subsequently inserted his fingers into her vagina and kissed her, so his tongue was down her throat. AM then refers to other occasions when the applicant would again insert his tongue into her mouth. On one particular occasion, AM referred to hiding in the wardrobe for the entire time the applicant was present at her home. She was subsequently castigated by her mother for this behaviour at which time AM allegedly told her that she did not like the way the applicant kissed her. Her mother allegedly replied that if you don't like the way he kisses, then keep away from him.
The applicant noted that in the record of interview at that time AM's mother regularly featured in her accounts. Whilst it is apparent that AM's mother may have been able to provide some evidence relevant to the counts involving AM, such evidence would be of limited relevance and weight given the circumstances in which they allegedly occurred. The absence of such evidence does not detract from the evidence expected to be given by AM in respect of the relevant accounts by reference to AM's record of interview and subsequent statement made in July 2021.
The applicant also relies upon the death of AM's sister in 1999 without a statement having been obtained from her. The applicant claimed that AM's sister (Christine) was likely to have been present at various family gatherings when the conduct the subject of Count 3 was alleged to have occurred. Further, AM had reported the abuse to Christine, who was aware of AM's complaint to police and indeed had allegedly been the subject of abuse at the hands of the applicant. Whilst Christine may been in a position to give relevant evidence of complaint, any forensic disadvantage to the applicant arising from that fact must be weighed against the potential lost opportunity for the Crown to call such evidence of complaint to support AM's allegations.
In respect to Count 1, the applicant also relies upon the death of AM's uncles CD in 1998 and WD in 2020. This is in the context of AM in her interview of September 1997 referring to persons who may have been present around the time the offence is alleged to have occurred. However, AM's responses lack specificity such as "a cacophony of people floating through my head", whether CD was there at that time or maybe another time and "definitely… maybe" WD was present. Ultimately AM said she "honestly couldn't recall it". The statements of AM as to the possible presence of either of these individuals, or others for that matter, is not such where the court could be satisfied there is any, or any significant forensic disadvantage, by reason of their death in the absence of statements having been taken from them.
In respect to Count 1, the applicant also relies upon the statement of AM of 9 July 2021 and the attached plan of her family home at the time the incident is alleged to have occurred. The applicant notes that the offence is alleged to have occurred in the kitchen at a time when, according to AM, there were people in the lounge and dining areas. It was also contended that it was possible there may been other people in the kitchen area. However, any potential forensic prejudice to the applicant is largely speculative. Persons who may have present in either room are not identified and in any event, there is no evidence that such persons would have necessarily witnessed the applicant's conduct constituting the alleged offence.
In respect Count 2, AM in her July 2021 statement, refers to this offence occurring when her own family and that of the applicants were greeting each other. It is contended that there were other witnesses who were capable of materially assisting in respect to that offence, however the applicant has been denied the opportunity to either refute or verify the claims made. The facts constituting the alleged offence was the kissing on the mouth coinciding with the insertion of the applicant's tongue into AM's mouth. The alleged forensic prejudice must be considered in the context of the statement of FC that all her relatives used to greet each other with a kiss on the mouth. The insertion of the tongue was something which may or may not have been witnessed by other family members at the time it is alleged to have occurred. The possibility of other persons being able to either verify or refute the complainant's account is largely speculative. The same observation can be made in respect to any alleged forensic disadvantage from any potential witnesses to the offence described at paragraph 30 of AM's statement relating to kissing on the mouth and insertion of the applicant's tongue during a greeting of the respective families. The same applies in respect to any forensic disadvantage arising from count 3 which is alleged to have occurred in similar circumstances.
The applicant again relies upon the fact that AM allegedly complained to her sister Christine and mother Valerie that the applicant had kissed her on the mouth and attempted to stick his tongue down her throat. AM's sister made a similar complaint. They are both deceased without statements having been obtained. As previously observed, whilst there might be some forensic disadvantage to the applicant from the absence of these witnesses with no statements having been taken, the Crown is denied the opportunity to call complaint evidence from either of these witnesses to either corroborate AM's evidence or otherwise support her creditability.
In respect to the complainant FC, the applicant alleges there is forensic disadvantage by the inability to test peripheral matters as well as the absence of complaint evidence.
The applicant refers to the statement of FC of the incident which is alleged to have occurred in a garage that FC's home "just before extensions were done". The applicant contends that with the passage of time, and the unavailability of Council records related to any extensions, he is not in a position to test or reconcile the timing of this alleged event. The applicant also refers to events alleged to have occurred in the Tempry which is context evidence and not related to any particular count. It is noted that the Tempry was demolished as part of renovations to the applicant's home in 1985.
Whilst such evidence might have potentially assisted the applicant in defence of the Crown case, and in particular in testing the evidence of FC, any forensic disadvantage is limited and, to an extent, speculative.
FC in her April 1997 statement also referred by way of an aside to her father (KC) who used to be ill and who passed away in 1993. The applicant alleges that the timing of any alleged event can only be related to having occurred prior to FC's father's passing. The applicant contends that the "context" evidence is "broad brush" and absent any specific timing. This is often the case with historic sexual abuse cases given at times the difficulty in narrowing the time at which events are alleged to have occurred.
The applicant also refers to other context evidence at paragraph 9 of FC's April 1997 statement that the applicant would touch her on the breasts or kiss her "every time he got the opportunity". The applicant contends that it would be expected that others would have seen such events occurring and that the absence of a timely investigation has led to a loss of opportunity to investigate the possibility of such witnesses being present and obtaining statements from them. The alleged forensic disadvantage in this respect is largely speculative and lacks precision.
The applicant alleges that the FC's mother (SC) has developed dementia in circumstances where a statement has never been obtained. The applicant refers to the events recounted in FC's April 1997 statement when her mother was showing the applicant and his wife some of her drawings from art school. The statement refers to the applicant coming to the doorway of her room complimenting her on her drawings and saying something to the effect that next time he came over he would go to the Tempry and paint her nude. The applicant alleges that FC's mother would have been present and heard this conversation. However, the content of FC's statement is not such that the court could conclude FC's mother was present when this statement was made. To do so would be largely speculative an, as counsel for the applicant conceded in submissions, other inferences were available on the statement.
The applicant relies upon FC's complaint to her mother of the alleged molesting at the hands of the applicant at the age of 24. As previously observed, any forensic disadvantage from the absence of complaint must be weighed against the Crown's loss of opportunity to call complaint evidence. In any event, any alleged complaint evidence was non-specific with FC merely telling her mother that the applicant had molested her when she was younger. FC specifically refers to the fact that she did not go into the detail at that time.
The applicant also refers to the evidence of FC that she had reported the applicant's alleged conduct to her sister-in-law (DC) who died in 2022 without a statement being obtained. As with the statements made to FC's mother, the complaint evidence was non-specific with FC simply alleging that the applicant had molested her when she was younger. Accordingly, the same observations are apt in respect to any alleged forensic disadvantage as with the unavailability of FC's mother.
The applicant notes FC's statement of June 2021 in which he referred to the applicant consistently sticking his tongue into her mouth when he kissed her. FC referred to her mother making her kiss the applicant which occurred mostly at the front door in the hallway of her home in front of everyone. The applicant again notes the unavailability of FC's mother due to her dementia. Any potential evidence to be given by FC's mother would be of limited relevance and/or weight such that it cannot constitute any significant forensic disadvantage to the applicant.
In respect to Counts 7 and 8, the applicant notes FC's statement of June 2021 of the events occurring during the building of the extension of FC's home. Whilst the statement refers to the extension being approved by the Council in September 1964, she was unsure as to when the building works were commenced. It is contended that Council records that are no longer available would have been able to verify when the work was undertaken and therefore provide some context of the timeframe when these events are alleged to have occurred. Whilst such evidence may have assisted the applicant in fixing a time for these allegations, I am not satisfied that the absence of such evidence constitutes a significant forensic disadvantage.
In respect to count 11, the applicant notes that this offence is alleged to have occurred in the Tempry. In FC's June 2021 statement, she describes in some detail the layout of the Tempry to provide context to the alleged offence. However, as previously observed, this structure was demolished in around 1985 and accordingly the applicant has lost the opportunity to properly test FC's evidence in respect to this count. While such evidence may have assisted the applicant in defence of the allegations made by FC, I am not satisfied that the unavailability of such evidence is such as to constitute a significant forensic disadvantage.
The applicant also refers to context evidence of FC in the June 2021 statement of further events which alleged to have occurred between 1972 and 1975 when FC was aged between 13 and 16. It is alleged that these events were likely to have taken place in the presence of others and there has been a loss of opportunity to investigate such claims for the purposes of the applicant's defence. Any alleged forensic disadvantage is largely speculative. The applicant refers to the loss of alleged complaint evidence in respect to complaints made by FC to her mother and sister-in-law DC referred to in paragraphs 42 and 43 of her June 2021 statement. As with other complaint evidence, the complaints to her mother and sister-in-law were general in nature and non-specific.
In respect to the complainant AM, the applicant refers to her interview with Police in September 1997 in which she described avoiding the applicant by hiding in the wardrobe. A discussion thereafter ensued between AM and her mother as to the fact that she did not like the way FC kissed her. AMs mother was said to have told her then to stay away from him. As previously noted, AM's mother died in 2015 in the absence of a statement having been obtained. Whilst AMs mother may have provided some corroborative evidence, it would arguably be on the periphery.
The applicant also refers to the same interview at page 25 and those who may have been present when the conduct the subject of Count 3 occurred. However, it is clear from AM's statements to police that there was a high degree of uncertainty as to who may have been present. AM referred to only having a "vague recollection of people, children and adults" and that maybe certain people were there although further stated "I honestly cannot recall it". The statements of AM in this respect do not reach a level of certainty that permits the identification of any particular witness, let alone anything relevant they may have seen. Any alleged forensic disadvantage is highly speculative.
In respect to the complainant FC, the applicant refers to her April 1997 statement to police in which she describes at paragraph 8 the conduct constituting count 11 on the indictment, and in particular the reference to "the family" attending the applicant's house. The applicant contends that the reference to the family draws in other members of the family from whom statements have not been taken. However, according to FC's statement, the conduct constituting this count is alleged to have occurred in the Tempry with no other persons present and with the door closed. It is difficult to see how enquiries of other family members would have taken the matter any further.
The applicant further relies upon FC's April 1997 statement in which she told her mother of her alleged molestation at the hands of the applicant. However, it is clear from FC's statement that the complaint was general in nature, the allegation simply being made that the applicant had molested her when she was younger. The statement further notes that she did not go into any detail at that time. Whilst the later complaint recorded in paragraph 12 of the statement refers to the applicant using his finger and touching her breasts, those complaints otherwise lack any specificity. As previously observed in any event, the passing of FC's mother without a statement being obtained also denies the Crown the opportunity of leading complaint evidence to corroborate the complainant's claims.
The applicant further relies on FCs statements as to the applicant's conduct with the kissing and placing of his tongue in her mouth potentially in the presence of others. As previously observed it is uncertain as to whether any other persons might have witnessed the events giving rise to the allegations.
The applicant refers to FC's reporting of the alleged conduct to her mother and sister-in-law. As previously observed, to the extent FC reported the conduct to those witnesses it could not be said it was in any detail. In any event, as previously observed, the death of these witnesses also prevents the Crown from leading potential complaint evidence.
The applicant also claims, by reference to paragraph 45 of FC's June 2021 statement, that FCs father, who died in 1992, may been able to give evidence of complaint. FC in her statement simply notes that her father was the only one who stood by her and would not allow the applicant into the house. FC's statement in this respect lacks details to what FC may have said to her father. In any event, the same observation is to be made as to the inability to lead complaint evidence, if any was available, from FCs father.
It is hardly surprising, given the offences are to alleged to have occurred so many years ago, that some relevant evidence is no longer available, and that witnesses who may have potentially provided relevant evidence have died. As the discussion above demonstrates, the significance of lost evidence, or the relevance of potential witnesses, varies. In some respects, the claimed lost evidence is largely speculative.
However, as the High Court observed in Edwards "the fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair".
In any event, at any judge alone trial, the judge, if satisfied that the applicant had suffered a significant forensic disadvantage due to the delay, could give himself or herself a direction in accordance with s 165B of the Evidence Act 1995. The effect of any such direction could go some way to ameliorating any forensic disadvantage by reason of the delay of the prosecution: Gardiner v R [2023] NSWCCA 89 per Adamson JA at [110].
Having carefully considered the applicant's submissions in respect to the alleged forensic disadvantage arising from the delay, I am not satisfied that the absence or unavailability of such evidence, either singularly or cumulatively, would result in the applicant receiving an unfair trial such that any conviction would bring the administration of justice into disrepute. I am not satisfied the absence or unavailability of evidence, either singularly or cumulatively, is such as to cause the proceedings to be permanently stayed.

The failure to bring charges or properly investigate the allegations in 1997

The applicant contends, as a further ground in support of the permanent stay application, that the decision to now prosecute, having previously determined to not to do so, amounts to an abuse of process, apart from any considerations of forensic disadvantage resulting from the delay in prosecution.
As previously noted, FC initially reported the abuse to police in April 1997 at which time a statement was taken from her. The applicant, when interviewed by police in August 1997, denied the allegations made by FC. In September 1997 AM made allegations against the applicant as contained in a statement made to police at the time.
It is apparent that some investigations were undertaken at the time of the initial reporting, although no prosecution was instigated. The only evidence as to why a prosecution was not instigated at the time is a report of Detective Senior Constable Miller dated 29 April 1998, apparently in response to a claim for victims' compensation. It was recommended that the report be sent to the Victims Compensation Tribunal "for favourable consideration to [FC]"
The report noted as follows: - "Further to the previous report. Inquiries into allegations made by [FC] of sexual assault by [the applicant] have been suspended. At this time, after consultations and advising's with Legal Services South West and the Department of Public Prosecutions, no prosecution against [the applicant] is anticipated. Due to uncorroborated allegations and the inability to adequately verify dates/offences/circumstances to a standard required by the courts no charges are being laid against the person of interest [the applicant] and the case held at the Bankstown local area command has been suspended."
According to a statement of Detective Senior Constable Melissa Velisavljevic an original case number was created in April 1997, and the case was subsequently suspended on 27 April 1998 with the reason recorded as "insufficient evidence to charge POI. Advising from DPP. Matter suspended." Subsequent enquiries with the DPP revealed that no records were held by that office in relation to the matter, the applicant, or the complainant. The original case file from 1997 was ultimately located. It contained an original statement of FC, a transcript of an interview with AM, as well as handwritten notes made to the applicant and his wife from FC. It also contained the transcript of the interview with the applicant from August 1997.
The applicant contends that a reasonable inference from the limited documents available is that it was the DPP who advised any potential prosecution of the applicant be suspended. As a result, the applicant contends that there is inherent unfairness in maintaining the proceedings, and the failure to lay charges in 1997 has led to a significant forensic disadvantage.
The applicant notes the Prosecution Guidelines of the Office of Director of Public Prosecutions includes the following: - "A decision to proceed in the matter, or to take no further proceedings, will be reversed when it is in the interests of justice to do so. It may be in the interests of justice to reverse a decision if: significant new facts warrant it the decision was the result of fraud or improper conduct the decision was made on an erroneous basis."
The applicant contends that there has been no disclosure by the DPP as to its compliance with its own guidelines in respect of its decision to institute the prosecution of the applicant. Further it is contended that a number of matters crucial to the application for a permanent stay and the fairness of any trial remain unknown to the applicant, including the initial investigative steps taken by Police, when and in what circumstances the decision was made not to charge the applicant in 1997. The applicant contends that in circumstances where the Crown case has not materially changed since 1997 prosecution of the applicant now constitutes an abuse of process.
In support, the applicant relies upon the judgment of Spiegelman CJ (with whom Bell and Hislop JJ agreed) in R v Burrell [2004] NSWCCA 185 that it is in the interests of consistent and disinterested administration of criminal justice that the prosecuting authority not be permitted to resile from its previous decision not to prosecute the applicant. In Burrell the DPP notified the respondent in writing of a decision to proceed no further in respect to a prosecution although advised "that the proceedings may be reinstituted if sufficient additional evidence of guilt becomes available." The respondent further relied upon the Director's own published Guidelines that where a direction had been given to take no further proceeding, that direction would not be reversed unless significant new facts warrant it, the direction was obtained by fraud, or the direction was obtained or made on erroneous material and the interests of justice require a reversal. The respondent submitted that given the express representations and general policies it would be an abuse of process to permit the proceedings to be reinstituted, at least in the absence of any substantial new evidence. In so doing, the respondent accepted that there was no principle of estoppel in criminal law, nor were prosecutorial decisions subject to control by the courts. Despite this, the respondent contended that in the interests of "consistent and disinterested administration of criminal justice" the DPP should not be permitted to resile from its position not to proceed with the prosecution.
The Court rejected, as a legal principle, that in the absence of "significantly new evidence" a further prosecution will generally, let alone must, constitute an abuse. The court referred to the High Court judgement in Walton v Gardiner at 392 - 393 per Mason CJ, Dean and Dawson JJ: - "The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness."
In written submissions [55] the applicant further relied upon the judgement of Kiefel CJ, Bell and Nettle JJ in Strickland & Ors v Commonwealth Director of Public Prosecution (2018) 266 CLR 325 at [106]: "But, as this court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute." (citations omitted)(emphasis added)
However earlier in the same paragraph their Honours observed that a permanent stay of the criminal prosecution was an extraordinary step which would be very rarely justified, and there was a powerful social imperative for those charged with criminal offences to be brought to trial. In the circumstances, a permanent stay should only ever be granted "where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial".

Consideration

The evidence discloses that the two complainants first reported the alleged abuse in 1997. It is apparent that some enquiries were undertaken by police although, according to the report to the Victims Compensation Tribunal, family members and people associated with the family had not been cooperative and persons associated with FC had "buried the matter in order to continue on with their lives." According to the same report no charges were laid against the applicant and the investigation had been "suspended" and no prosecution against the applicant was "anticipated". The report noted that this decision had been taken after consultations and "advising" with NSW Police Legal Services Unit and the "Department of Public Prosecutions".
There is no evidence that this report was provided to the applicant at the time it was issued. There is no evidence of what the applicant was told, if anything, at that time as to the status of the investigation or any proposed prosecution.
It is apparent that the investigation was reopened in 2021 which involved obtaining further detailed statements from both complainants. Additional statements have more recently been obtained in 2022 and 2023. This included a statement from CD1, a cousin of both complainants. CD1 recalled that when she was about nine, and FC was about 12, she was "firmly" and "very urgently" told never to be alone with the applicant. A statement was also obtained from AM's husband that a few years prior to 2022 AM told him that something had happened with the applicant when she was young. Whilst he could not recall precisely what was said, he recalled being told by FC that the applicant had kissed her on the face and picked her up in the air. Further that she was afraid of the applicant and that every time he would visit, she would hide from him in the wardrobe.
More recently a statement was obtained from SM, who FC alleged was present when something occurred involving the applicant in the garage at FC's home. SM recalled the applicant "flashing" his penis at FC and AM and that shortly thereafter she ran from the garage.
As previously observed, there is no general rule that the absence of significantly new evidence in the institution of the prosecution, years after a decision was made not to prosecute, constitutes an abuse of process. It is apparent that whilst the investigation was suspended in 1997, and no prosecution was then anticipated, the investigation was reopened more recently with the obtaining of updated statements from each complainant and statements from other potential witnesses. To the extent the applicant relies upon the ODPP Prosecution Guidelines there is no evidence that it was the Director's decision not to proceed with a prosecution of the applicant. Indeed, it appears to have been a decision made by NSW Police, albeit after apparent consultations with its own legal services unit and the DPP.
I am not satisfied that the decision to now prosecute the applicant falls within the category of a defect in the prosecutorial process, let alone one that is so profound such as to offend the integrity and functions of the court.

Conclusion

For the reasons already given I am not satisfied that the applicant's impaired cognitive function and/or presumptive and/or specific prejudice arising from the delay in bringing the prosecution is such that a permanent stay of prosecution should be granted. Further I am not satisfied that the decision to now prosecute the applicant, having previously determined not to proceed, is such that a stay ought to be granted.
In any event, fairness to the applicant, whilst an important consideration, is not the only relevant factor. In considering whether a permanent stay ought to be granted it is also necessary to take into account the substantial public interest in having those who are charged with serious criminal offences brought to trial: Dupas at [37]; Jago at 33; Gardiner at [107].
The two complainants have alleged that the applicant repeatedly, and over a protracted period, committed serious offences of a sexual nature, some involving digital and penile penetration. There is a substantial public interest in having the applicant brought to trial in respect to the charges arising from the allegations made by the two complainants.
I am not satisfied that the continued prosecution of the applicant is such as to cause the administration of justice to fall into disrepute. I am not satisfied that the continuation of the prosecution of the applicant would involve an unacceptable injustice or fairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.

Amendments 17 August 2023 - Anonymisation corrected at [26] and [133] 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: 17 August 2023

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