R v Marszalek

The Medical Evidence

1. A number of medical reports were annexed to the affidavit of Carrie Nicol, solicitor, affirmed on 18 May 2023 which was read without objection on the application. None of the report writers were required for cross-examination and the Crown did not put in issue the medical evidence adduced on the application by the Offender.
2. In short summary, the Offender since July 2022 has been diagnosed with advanced primary liver cancer with metastases to lymph nodes. In a report dated 5 September 2022 from Professor Morteza Aghmesheh it was noted that the Offender was currently having palliative treatment and his disease was categorised as a terminal illness with life expectancy being less than 24 months in the majority of patients. The Offender is some 62 years of age.
3. Exhibit 2 on the application is a letter dated 9 September 2022 from the Acting Executive Director Clinical Operations at Justice Health concerning the Offender to the Commissioner of Corrective Services NSW. That letter noted the Offender's diagnosis and noted a prescribed health officer had formed the opinion under clause 285 of the Crimes (Administration of Sentences) Regulation the Offender was an inmate who would not survive sentence or is totally and permanently unfit for correctional centre discipline.
4. On 30 September 2022 the Offender was granted bail, no doubt it would seem because of his health condition.
5. The latest medical report placed before me on the application is a report dated 31 March 2023 from Dr Jared Millican, a Palliative Medicine Physician, Staff Specialist, at Canterbury Hospital. The doctor notes in that report that he reviewed the Offender as an inpatient at the hospital between 23 February 2023 and 1 March 2023. The doctor in that letter expressed the opinion that the Offender's likely prognosis was less than twelve months.
6. When the application came on before me, there was no appearance of the Offender although his counsel and solicitor were present. The Offender's legal representatives were unable to contact him. It was agreed between the parties that I should proceed to hear the application in the Offender's absence and stand it over to the following day to see if the whereabouts of the Offender could be ascertained. Counsel for the Offender indicated that he hoped to be able to tender additional medical evidence as well. I stood the application over to the following day, however, the Offender's legal representatives were still unable to contact him, and no further medical evidence was forthcoming, so I adjourned the application to today for judgment.

The Relevant Principles

1. A permanent stay of criminal proceedings is an exceptional remedy. The High Court has described the granting of a permanent stay as a drastic remedy, tantamount to a continuing immunity from prosecution. It should only be granted in extreme or exceptional circumstances. The applicant for a permanent stay has the onus of establishing the factual circumstances which ground the application and warrant the use of the exceptional power. The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness; will be so unfairly and unjustifiably oppressive as to constitute an abuse of process, see R v Edwards [2009] HCA 20.
2. In the context of a trial, the Court must be satisfied that there are no other available means to the Court to ensure that a fair trial can be afforded an accused prior to granting a permanent stay, see Jago v District Court of New South Wales & Ors (1989) 168 CLR 23, R v Glennon (1992) 173 CLR 592.
3. I was not referred by counsel to any authority where a permanent stay of sentence proceedings, as distinct from special hearings or their equivalent under Commonwealth legislation, or trials, has been granted on the basis of a person's medical condition.
4. The power to grant a permanent stay does extend to special hearings where an Accused person is not fit to stand trial. The approach to be taken to applications for a permanent stay of a special hearing based upon the deteriorating health of an accused was considered by the High Court in Subramaniam v R (2004) HCA 5 at [31]. The High Court endorsed as the appropriate test to apply the following: "Would it be out of accord with common humanity" to allow the special hearing to proceed?; see para 31.
5. The test has also been more recently expressed by the Court of Criminal Appeal as determining whether the continuation of the proceedings would be "manifestly unfair to a party" or would "bring the administration of justice into disrepute"; see Kitchingman v R [2023] NSWCCA 4 at [20]
6. Similar principles have been applied in relation to an application to permanently stay a trial on the ground of ill health; see Hakim (1989) 41 ACrim R 372.
7. Permanently staying sentence proceedings because of the ill health of an offender would be a particularly exceptional step for a court to take. Leaving to one side the fact that permanently staying criminal proceedings is always an exceptional step for a court to take, in sentence proceedings the medical condition of an offender and the fact that he or she has a terminal illness, is a relevant factor for a sentencing court to consider in determining the appropriate sentence to impose. That fact makes it more exceptional to stay sentence proceedings on the basis that there would be a relevant unfairness to an offender, as the court in sentencing the Offender must consider the medical evidence and determine, in accordance with accepted sentencing principle, what weight to give it in determining the appropriate sentence to impose. In other words, to provide the Offender with an appropriate level of fairness in the exercise of the sentencing discretion having regard to the evidence of his or her health and sentencing principles.
8. In my opinion, before permanently staying sentencing proceedings, it would be necessary for the evidence to show that the Offender was unable to participate in those proceedings because of his or her physical health and would be unlikely to become physically healthy enough to do so in the foreseeable future. If the evidence established those matters, then in my opinion, a court may consider that to allow sentencing proceedings to proceed would be out of accord with common humanity and unfair in the relevant sense.

Decision

1. Here, the evidence before me does not establish that the Offender is unable to participate in the sentence proceedings. Even assuming his condition will have deteriorated since March this year, there is no basis for concluding that he is so physical unwell that he is unable to participate in the sentence proceedings.
2. For the reasons I have given, the application to permanently stay the sentence proceedings of the Offender is refused.

Orders 1. The application to permanently stay the sentence proceedings is refused. 2. The matter is to proceed to sentence.

Amendments 18 December 2023 - Fixed catchwords 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: 18 December 2023