R v Reilly

District Court of NSW|2021-09-01

OVERVIEW

The present application is for a permanent stay of proceedings on an indictment which has been presented against John Patrick Reilly. The not inconsiderable delay in finalising the determination of that application and subsequent developments have necessitated a careful consideration of the matter as it now stands.
In brief overview, the accused is a former Marist Brother who is alleged to have sexually abused a number of young boys when he was the Boarding Master or 'Dorm Master' at St Vincent's Boys' Home at Westmead between approximately 1978 and 1980.

SHOULD THE QUESTION OF FITNESS TO BE TRIED BE DETERMINED IN ADVANCE OF DETERMINING THE STAY APPLICATION?

Whilst I will come to the detail of the chronology of the delay since September 2021 in due course, the fact that judgment on the application for a permanent stay had not been delivered prior to a clear question of the accused's fitness to be tried being raised, requires at the outset a consideration of the provisions of s 42 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, which commenced in March 2021.
Section 42 requires the court to conduct an inquiry to determine whether a defendant is unfit to be tried where the question of unfitness is raised after arraignment.
The section is in the following terms: 42 When an inquiry is required or may not be held (1) The court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence if - (a) the court determines that an inquiry should be conducted before the defendant is arraigned on a charge in respect of the offence and does not subsequently determine that the inquiry is not needed, or (b) the question of the defendant's unfitness to be tried is raised after the defendant is arraigned on a charge in respect of the offence. (2) The inquiry is to be held as soon as practicable after the court makes the determination or the question is raised after arraignment.
The first question raised, accordingly, is whether such an enquiry should now take precedence over a determination of the permanent stay application which is outstanding.
In the submission of both parties, the court should proceed to determine the application for the stay, notwithstanding the question of unfitness having been raised in the reports which have most recently been obtained.
The previous Act having application to the question of a fitness to be tried was the Mental Health (Criminal Procedure) Act 1990. That Act similarly dealt with the question of fitness to be tried being "raised" either before or after arraignment. The question of fitness could be raised before arraignment but might be raised at any time (s 7). Where an issue of fitness was raised after arraignment, the court was required to hear submissions on the conduct of an inquiry in the absence of the jury (s 9). In such circumstances, the court "must," save in specific circumstances, conduct the inquiry into the question as "soon as practicable" (s 10).
In R v WRC [2003] NSWCCA 394; 59 NSWLR 273; 143 A Crim R 503, the Court of Criminal Appeal upheld a Crown appeal against the grant of a permanent stay by the judge at first instance. The circumstances which had attended the proceedings in the District Court were that the accused had originally faced trial on a number of charges of indecent assault in respect of which he had been tried before a jury in November 2000. The jury had been unable to reach a verdict and had been discharged.
With respect to two other complainants, the accused had also stood trial and had been convicted. However, in June 2002 the Court of Criminal Appeal quashed those convictions and the NSW Director of Public Prosecutions subsequently directed that there be no further proceedings with respect to those matters. Prior to the convictions being quashed by the Court of Criminal Appeal, the accused had served some 20 months imprisonment towards the sentences which had been imposed.
In 2003, an indictment with respect to the original complainant where the jury had been unable to reach a verdict in November 2000 came before Judge GD Woods QC. By that time, two psychiatrists, Dr Westmore and Dr Lucire, had both concluded that the accused was unfit to be tried.
The accused had a number of physical ailments including an indolent cancer which meant that it was not painful, but which did not mean that it was not fatal. This affected the accused's life expectancy. He also had minor coronary artery disease.
The Crown, on the application for a permanent stay brought before Woods QC DCJ, submitted that no permanent stay should be granted, but that the Court should make orders to have the matter of fitness determined under the provisions of the relevant legislation. The Crown submitted that it had been the intention of Parliament that the Mental Health (Criminal Procedure)Act 1990 (NSW) was to "cover the field" and hence it was not open to the court to order a stay on the basis of the cognitive impairment of the accused.
At first instance, Woods QC DCJ ordered that the indictment should be permanently stayed as an abuse of process.
The Court of Criminal Appeal, per Spigelman CJ, Dunford and Hidden JJ agreeing, first determined whether the relevant legislation had been intended to cover the field. The Court held that the Crown's contention that the first instance judge had no jurisdiction to make the order for a permanent stay, on the basis that the Mental Health Provisions covered the relevant field, should be rejected.
Spigelman CJ determined, at [49]: "There is a strong presumption that the legislature does not intend to abrogate the inherent jurisdiction of a superior court to control abuse of its processes."
The Chief Justice concluded, at [50]: "Nothing in Pt 2 of the Act suggests, let alone states with sufficient clarity, that the Parliament intended to impinge on the implied jurisdiction of the District Court or the inherent jurisdiction of this Court, in this regard."
Accordingly, it had been open to the judge at first instance in the District Court to determine whether the relevant unfairness which might justify a permanent stay was made out, notwithstanding the finding of unfitness by the psychiatrists.
However, notwithstanding the finding of jurisdictional ability to reach the conclusion which the District Court Judge had, the Court of Criminal Appeal reached the conclusion that Woods QC DCJ had failed to give weight to the existence of the alternative mechanism which would be determined by a jury. The Court held that the special procedure provided for under the Mental Health legislation should be allowed to operate "unless there is some overwhelming reason for not allowing that to happen." The Court, found, at [59] that there was "no evidence of that character before his Honour".
The legislation has, of course, now changed. The relevant procedures are now contained in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). However, the wording of the applicable sections are relevantly identical.
Accordingly, for the reasons articulated by Chief Justice Spigelman in WRC, I accept the submissions by both the Crown and the applicant in the present matter that this court does have jurisdiction to resolve the stay application, without being obliged to proceed immediately to a mandated determination of the question of fitness.
However, the availability of the possible mechanism of a special hearing is an important factor to be given weight in the exercise of discretion with respect to the application for a permanent stay.

RELEVANT HISTORY OF THE PROCEEDINGS

I will come to the detail of the various allegations later in this judgment. However, the starting point of the relevant chronology is that the offending conduct is alleged to have occurred, as already noted, between approximately 1978 and the end of 1980.
The first complainant, "Simon Walker" (aka "Simon West"), made contact with the Royal Commission into Institutional Responses to Child Sexual Abuse in about 2015. He provided a statement to solicitors in 2015 in a proposed action seeking compensation from the trustees of the Marist Brothers. That statement (part of Exhibit 10 in these proceedings) set out the detail of what can only be described as a manifestly deprived and dysfunctional upbringing. The complainant described being sexually, physically and psychologically abused by four of the Brothers at the St Vincent's Boys' Home, as well as by another man who was an employee at the school, named "Bill." He also described physical assaults at the hand of his stepfather.
In May 2016, he provided the first of four police statements. The first statement related to alleged sexual offending against him by a man called "Jim" who would drive Simon Walker and other boys from the school to get cigarettes. The boys would be sexually abused and paid to have naked photographs taken of them. No allegations relating to the present applicant were made in this first statement.
A second statement of October 2016 did set out detailed allegations against the present applicant as well as sexual assault allegations against three of the other Marist Brothers at the home. The court is unaware of any proceedings brought against the other alleged offenders with respect to this complainant.
The accused was initially arrested and charged in November 2018. By that time a statement had also been taken from another complainant, "Paul Old". There were eight Court Attendance Notices with respect to offences against "Simon Walker". Five were allegations of assault with an act of indecency (sequences 1, 2, 5, 7 and 9); one Court Attendance Notice (sequence 6) alleging an act of buggery (upon "Simon West"); one count alleging an act of buggery with the complainant named "Paul Old" and one count (sequence 11) alleging assault with an act of indecency on another complainant, "Laurie Redhead".
It is unclear on what basis the original charge in relation to "Laurie Redhead" was laid in November 2018 as his police statement was not taken until May 2019.
In July 2019, Police obtained a statement from an additional complainant, "Timothy Rowe". No charges were laid at that time with respect to that complainant, nor was the statement served at that time.
In August 2019, the accused was committed for trial with respect to seven allegations against "Simon Walker" as well as the count of buggery charged at that time with respect to the name "Simon West". The accused was also committed for trial with respect to the single count relating to "Paul Old" and the single count relating to "Laurie Redhead". At some stage the circumstance of "Simon Walker" and "Simon West" being the same person was clarified.
At the first mention of the matter in the District Court on 12 September 2019, a question of the possible lack of fitness of the accused was raised. The matter was stood over on that account, by consent, for arraignment on 14 November 2019.
On 14 November 2019, no further issue regarding fitness was raised. The accused was arraigned and entered pleas of Not Guilty to all 10 counts on the indictment. A trial date was listed for 2 November 2020 with an estimate of 15 days and pre-trial applications were listed for 2 September 2020.
The matter next came before the List Judge at Parramatta on 27 August 2020. The Court was advised of the death of the complainant "Paul Old" and the date which had been set aside for either call-over or pre-trial applications on 2 September 2020 was vacated. The likelihood of additional Crown material being served was advised and the pre-trial hearing was fixed for 25 September 2020.
On 25 September 2020, the pre-trial hearing was vacated and re-listed to 9 October 2020.
On 9 October 2020, a motion by the accused to vacate the trial date was granted. The basis of the vacation of the trial date was that the statement obtained from "Timothy Rowe" in July 2019 had been served by the Crown in either August or September 2020. The court was advised that additional ex-officio counts would be included in the indictment for trial. The court was also advised that the same complainant had medical difficulties and might not be able to give evidence at all at the trial. The Crown also indicated a proposed notice of motion to have one complainant give evidence in the trial via audio visual link from Queensland.
The indictment which is now before this court includes two counts relating to the allegations raised by "Timothy Rowe". Although the Court was advised in October 2020 of the intention to include these additional counts at the then proposed trial, it is unclear as to whether a fresh indictment was ever filed or presented at that time.
The trial date in October 2020 was vacated and a new trial date was fixed for 11 October 2021. The matter was listed for call-over on 12 March 2021.
On 12 March 2021, the matter was again adjourned for further call-over to 28 May 2021.
On 28 May 2021, the court was advised of an intention by the accused to apply for a permanent stay. The Defence had made a number of requisitions which the Crown was unable to comply with because of the historical nature of the allegations.
The List Judge directed that the stay application should be dealt with in advance of foreshadowed arguments about tendency and an application for severance of the counts in the indictment. Orders for the filing of a Notice of Motion with respect to the application for a permanent stay and accompanying evidentiary material were made. These were required to be served by 23 June 2021.
Notwithstanding that the court file suggests that a fresh indictment including the allegations by "Timothy Rowe" was not filed or presented, the written submissions with respect to the permanent stay application included those allegations.
On 23 June 2021, the permanent stay application was fixed for hearing on 1 September 2021. It was noted that further additional statements were still to be served.

APPLICATION TO STAY PROCEEDINGS

The hearing of the Notice of Motion for a permanent stay first came before me on 1 September 2021.
I will make reference to the detail of the submissions in support of the application and the response by the Crown later in this judgment. A total of 10 documentary exhibits were tendered, variously on behalf of the Applicant and the Crown at the initial hearing of the application.
In the course of oral submissions on 1 September 2021 on behalf of the accused, the court was advised that the psychiatrist retained for the Applicant, Dr Schramm, had a further appointment with the accused on 9 September 2021 and that it was anticipated that an updated report would be prepared.
The matter was accordingly adjourned part-heard to 6 October 2021 at Parramatta District Court.
In due course, the List Judge at Parramatta vacated the trial date which had been fixed for October 2021 and a new trial date was fixed for 14 November 2022.
On 6 October 2021, the updated report from Dr Schramm dated 9 September 2021 was tendered as Exhibit 11 on the application for permanent stay. Supplementary written submissions were provided and further oral submissions were made. A transcript of the proceedings was ordered and the matter was adjourned to 10 December 2021 at Sydney District Court for judgment.
Prior to 10 December 2021, the matter was adjourned until February 2022 due to trial commitments by the presiding judge.
In February 2022, the matter was again delayed, ultimately to 2 May 2022.
The presiding judge was then sitting in trials in Newcastle and counsel for both the Crown and the accused appeared via AVL from Sydney. The court had been advised prior to that date that an additional complainant had been located and that a statement had been obtained from him. On behalf of the accused, the court had also been advised that a yet further updated psychiatric report was being obtained.
Delivery of judgment on the motion seeking the stay of proceedings was accordingly again delayed, by consent. Leave was granted to the Crown to file an amended indictment.
The matter was again listed during the trial over which the Court was then presiding in Newcastle on 16 May 2022.
In advance of that date, emails were received from both parties. The Crown forwarded the amended indictment and advice was received from the defence regarding the ongoing mental health circumstances of the accused.
On 16 May 2022, the accused was arraigned via AVL from Queensland, where he resides, on the fresh indictment with a total of 22 counts. Eleven of these related to the new complainant, "Elton John". The original indictment presented in November 2019 had contained 10 counts, of which one related to the now deceased complainant, "Paul Old".
The two counts relating to "Timothy Rowe" were included in the indictment presented in May 2022 and it would appear that this was the first time that these counts had been formally included in an indictment presented in court. The original 10 counts were reduced effectively to nine by the death of "Paul Old"; the addition of two relating to "Timothy Rowe" took it to 11 counts and the additional 11 counts relating to "Elton John" comprised the total of 22 counts.
On arraignment the accused pleaded Not Guilty to all 22 counts. The court was advised that a further assessment was being carried out by the psychiatrist Dr Schramm on 9 June 2022. It was not anticipated that the report would be available until early July 2022.
The matter was adjourned to 22 July 2022 in order that the report from Dr Schramm be obtained and served.
On 22 July 2022, the court was advised that the report of Dr Schramm indicated that he was now of the opinion that the accused's cognitive deterioration had increased to the stage that he was now not fit to be tried. The report had been served on the Crown. The Court was advised that the Crown had made arrangements for an independent psychiatrist to provide a report with respect to the accused's fitness.
The matter was stood over for further mention to 19 August 2022 at Sydney District Court.
On 19 August 2022, the matter was again mentioned. The Crown had obtained and served a psychiatric report from Dr Adrian Martin in which the expectation had been expressed by the retained psychiatrist that: "On balance, it is likely that the Court will find Mr Reilly unfit to plead and unfit to stand trial."
Both parties sought that the matter be adjourned pending the Crown obtaining instructions with respect to the future conduct of the proceedings. In the event that the matter was to remain on foot, a timetable for the exchange of written submissions was to be forwarded to the Court. The matter was stood over to 16 September 2022.
On 16 September 2022, the Court was advised that the Crown had declined to act on an application by the accused, (I would infer that this was a reference to a "No-bill" application) and that a determination of the stay application would be required. In light of the opinions raised in the fresh psychiatric reports, the trial date of 14 November 2022 was vacated.
As a consequence of these developments and in the circumstances where the court was in the middle of a three-month fraud trial with a jury, the matter was adjourned for further oral submissions to the afternoon of 30 September 2022.
On 30 September 2022, the court raised with the parties the question of whether a fitness hearing was obliged to be held without a determination on the stay application. As outlined much earlier in these observations, both parties made a submission that the court could and should determine the stay application in advance of a fitness hearing.
The application for a permanent stay was thereafter reserved for judgment.

THE CROWN CASE AGAINST THE APPLICANT

Before turning to the submissions relating to the application for a permanent stay, it is appropriate to give an overview of the Crown case against the applicant.

The first complainant

The first complainant remembers the accused as being referred to as "Brother Hugh". He recounts a specific estimate of the age of the accused at the time and a description of his casual clothing. "Simon Walker" resided at St Vincent's Boys' Home between 1978 and 1983 when he was between the ages of approximately 10 and 16 years. He describes having been brought up in a dysfunctional home and having suffered physical abuse at the hands of his stepfather prior to being taken by a social worker, together with his brother, to live at St Vincent's Boys' Home.
"Simon Walker" describes assisting the accused mow the grass and attend to the grounds at St Vincent's as part of his designated chores. He described a common occurrence of the accused fondling and squeezing his ("Simon's") penis while sitting on the tractor utilised to mow the grass and attend to the grounds. Aspects of interactions which might be categorised as grooming were described in some detail.
Count 1 relates to an alleged indecent assault involving rubbing the child's penis while he was in his bed in the dormitory in February 1979.
The second count of assault and committing an act of indecency occurred at the same location the following night. It involved the accused forcibly moving "Simon's" hand up and down on the accused's penis causing him to masturbate the accused. The context in which the specific offences are alleged to have occurred thereafter involved the accused coming to "Simon's" bed every night and forcing him to masturbate the accused in a similar fashion.
Count 3 arose in around April 1979 when "Simon Walker" and two friends began discussing how they could prevent the accused kissing them before they went to bed. The three boys devised a plan to put Dencorub (a heat gel) on their feet and sleep upside down with their feet in place of their head. The plan was that when the accused went to kiss them goodnight, he would "get a face full of Dencorub."
The accused shone a torch when he approached the complainant's bed and upon finding him effectively upside down, or more accurately, sleeping the other way around, said "You little bastard" and proceeded to hit the boy all over his body with a cane. This alleged assault is Count 3 in the indictment as a common assault.
Count 4 involved a further alleged assault by the accused against "Simon Walker" which was said to have been witnessed by a senior boy, "Mark Holden".
Count 5 is a further allegation of assault with an act of indecency which involved a similar act of forced masturbation on the accused. This occasion was said to have taken place in the accused's bedroom.
Count 6 arose on the same occasion and is an allegation of buggery which again is alleged to have occurred in the accused's bedroom.
Context evidence is proposed to be led that the accused had sexual intercourse with "Simon Walker" in the same manner approximately twice a week up until the boy left St Vincent's in 1983.
Count 7 is an act of assault and committing an act of indecency said to have occurred on a summer afternoon in 1979 or 1980. The described incident had allegedly involved masturbation of the boy in the shower.
Count 8 relates to an allegation of assault occasioning actual bodily harm in which the accused is alleged to have kicked the young person down a number of steps in circumstances where his right arm was broken in the incident. A hospital record relating to the admission of "Simon Walker" for a broken right arm in July 1979 was reported as having been sustained "playing football".
After leaving St Vincent's Boys' Home in 1983, "Simon Walker" claims to have told his brother "Matthew Walker", who had also been at the Boys Home, about the offences. He told his brother in 1991. The Crown Case Statement indicates that "Matthew Walker" committed suicide in 1993.
In 2015, "Simon Walker" saw a notification on Facebook regarding the Royal Commission into Institutional Responses to Child Sexual Abuse and thereafter made contact with the Commission.
On 1 May 2016, "Simon Walker" provided his first statement to police. As noted earlier, that first statement did not make mention of the present applicant. As similarly noted earlier, the court is not aware of the outcome of proceedings, if any, against the other Brothers nominated by this complainant.

The second complainant

"Laurie Redhead" (also known as "Laurie John") was born in August 1967. "Laurie Redhead" was at the Boys Home, together with his twin brother "Elton John", between the age of around 10 or 11 in 1978 and the beginning of Year 9 when he would have presumably been about 14 years of age.
Count 9 in the indictment relates to an alleged indecent assault by the accused on "Laurie Redhead". It involved the accused rubbing his facial hair up and down the boy's stomach before moving his facial hair in the vicinity of the boy's penis in what was originally perceived to be an attempt to tickle.
Ongoing context evidence asserts a repetition of such conduct approximately a dozen times in the space of a few months and occasions where the accused's hand was used to fondle "Laurie Redhead's" penis.
After the last incident, "Laurie Redhead" approached Brother Flavian and made complaint about what the accused was said to have done to him. Brother Flavian directed "Laurie Redhead" to take his complaint to another brother, Brother Thomas.
At the end of sixth grade, "Laurie Redhead" and "Simon Walker" were moved to the Senior's Dormitory which was supervised by the accused, instead of the First and Second Form Dormitory.
In 2019, police approached "Laurie Redhead" and subsequently obtained a statement from him in May 2019.
It should be noted that Brother Flavian died on 24 March 2017. It should also be noted that the other person nominated as a person to whom complaint was made, Brother Thomas, is also deceased, having passed away on 8 April 2018.

The third complainant

The third complainant, "Timothy Rowe", was born in November 1968. He resided at St Vincent's Boys' Home for approximately 2-3 years between 1980 and late 1982 or early 1983. He was between the ages of about 11 and 13 or 14 during that time. He was initially taken to St Vincent's by Youth and Community Services at the beginning of 1980, having previously been brought up in a dysfunctional home. On his first night at the Boys' Home, in a dormitory described as being on the third level which was supervised by Brother Hugh (the accused), the accused came and kissed him on the lips at the time the boy went to bed. The accused told him, "That's the way we show affection here."
Count 10 is an allegation of common assault derived from an incident in which the accused caned the boy as punishment for not having washed his feet. The accused reprimanded him after caning him three times on each hand and said, "This will make you think about your hygiene."
Context evidence is proposed to be led that during the winter of 1980 the accused and another Marist Brother, Brother John, took "Timothy Rowe" and five other boys on a camping trip to Mittagong Boys' Home. While sitting around a campfire the accused would drink Scotch and become inebriated and become affectionate towards the complainant.
Count 11 relates to an indecent assault by the accused on "Timothy Rowe" during 1981 when the accused is alleged to have sexually assaulted the complainant in the shower cubicle and digitally penetrated his anus.
It is appropriate to note in passing that the absence of any diagram of the layout of the showers for the boys' dormitory, together with the absence of plans of the dormitory itself, forms part of the claimed lack of fairness as a consequence of the absence of such material.
Further context evidence is proposed to be led with respect to a camping trip to North Stradbroke Island in the summer holidays. Both the accused and Brother John accompanied a number of boys including "Timothy Rowe" on the trip. The accused's niece, Patricia, also attended.
On the second night of the trip, this complainant was lying in a tent with Patricia. The accused sent Patricia back to her tent. In the course of the night "Timothy Rowe" was woken by the feeling of a hand on his penis. The accused, who smelt of Scotch, tried to get into the complainant's sleeping bag.
"Timothy Rowe" also describes another incident where he had a sand rash around the front of his groin. His friend, who I will refer to as "Raymond Chandler", had a similar rash. The complainant described observing the accused rub cornflower around "Raymond Chandler's" penis and buttocks. The accused then did a similar thing to "Timothy Rowe".
It is again appropriate to note in passing that a statement obtained from "Chandler" was obtained in July 2019. According to the second affidavit of the Applicant's solicitor, Ms Tierney, that statement was only served in August 2020, more than 12 months after it was obtained. She deposes that the statement appears to contradict the allegations in that regard by "Timothy Rowe".
"Timothy Rowe" also states that a male ranger who was working at North Stradbroke Island came over and spoke with the accused.
"Timothy Rowe" left St Vincent's Boys' home in late 1982 or early 1983. He never told anyone about the assaults but provided a statement to police in July 2019.

The fourth complainant

11 ex-officio counts were included in the indictment presented on 16 May 2022. Although not tendered in court, during the period in which judgment has been reserved, a copy of the police statement of this complainant, together with an expanded Crown Case Statement, has been forwarded to my chambers at my request and by consent of both parties. Those documents have been marked as Exhibits 12 and 13 on the application.
"Elton John" is the twin brother of "Laurie Redhead". He is the brother referred to as "Bernie" in the statement of "Laurie Redhead" and in recent years has been known as "Elton". [Balance of this paragraph redacted as likely to disclose identity of these complainants].
The police statement was taken on 26 March 2022. The various counts arising from the allegations now brought include one incident said to have occurred in February 1979, being an assault with an act of indecency. Four of the remaining counts are alleged to have occurred between 1 May 1980 and 31 December 1980, each similarly alleging an assault with an act of indecency. The remaining six counts are all alleged to have occurred between 1 August 1980 and 31 December 1980. Three of those counts allege an assault with an act of indecency whilst the remaining three allege an act of buggery during that same period.
In the circumstances where neither the Crown nor the applicant has addressed the detail of the various allegations, and the statement was forwarded to the court at my request, I do not intend to go into the fine detail of the specific allegations.
It is, however, appropriate to note that the Brother who "Elton John" said that he made complaint to, Brother Thomas, is, as noted earlier, deceased. "Elton John" states that he also made a complaint when he was about 18 to his stepbrother, who I will refer to as "Thomas Black". "Thomas Black" died in 2020.
Before leaving the Crown allegations from the now four complainants, it is also appropriate to observe that the various complainants identified the accused, "Brother Hugh" with somewhat different descriptions.
The complainant "Simon Walker" remembers the alleged offender being around 40 to 50 years of age at the time of the offending when the offender would in fact have been about 48 to 49 years of age. He was described by "Simon Walker" as being 5' 9", of medium build with thin dark hair that was balding on top.
The complainant "Laurie Redhead" described the alleged offender as being in his fifties with greyish hair around the sides of his head, which was, however, bald on top.
The complainant "Timothy Rowe" describes the offender as having a moustache and dark coloured hair which was balding at the back and being of a medium build.
The complainant "Elton John" describes the alleged offender as having a European appearance being in his late fifties or early sixties, being stumpy in height, having black hair and being clean shaven.

INITIAL SUBMISSIONS ON BEHALF OF THE APPLICANT

Written and oral submissions were provided to the court in September 2021. The first set of written submissions on behalf of the applicant, dated 22 June 2021, correctly recited the principles relating to the granting of a permanent stay in criminal proceedings. The submissions then summarised the detail of numerous cases both in New South Wales and from the Victorian Court of Appeal in which the granting of a permanent stay had been the subject of the proceedings.
In support of the application, counsel for the applicant, Mr Djemal, tendered three affidavits of Rachel Tierney, the solicitor for the accused/applicant (Exhibit 1: affirmed 2 October 2020; Exhibit 2: affirmed 22 June 2021; Exhibit 3: affirmed 30 August 2021).
The first affidavit of Ms Tierney (Exhibit 1: 2 October 2020) identified various of the Marist Brothers who are believed to have been at St Vincent's Boys' Home during the relevant years and who were still alive. A statement from only one of those Brothers had been served by the Prosecution.
The affidavit further identified an itemised list of other potential witnesses including two (possibly three) witnesses who were said to be first complaint witnesses, at least one of whom had since died. I note that a second of the nominated witnesses has also subsequently died.
Ms Tierney deposed in that first affidavit with respect to the various health conditions including prostate cancer and heart issues suffered by the accused. The affidavit annexed a letter from Dr James Khan dated 1 October 2020 which included the following: "Brother John Reilly is a frail 90-year-old gentleman, suffers from coronary artery disease, cerebrovascular disease and other chronic medical conditions. His cardiac condition makes him more vulnerable to COVID-19 infection, especially if he travels to Sydney on a public transport." The general practitioner recommended that the accused not travel to Sydney until "the COVID-19 pandemic has been well controlled in NSW."
In her second affidavit (Exhibit 2: 22 June 2021) Ms Tierney set out a detailed chronology of the matter, commencing with the first contact with the accused and his solicitors by police. Ms Tierney included relevant communications between the representatives of the accused and the police or DPP.
A statement from "Raymond Chandler" was served in August 2020. Ms Tierney deposes, as I have indicated earlier, that the statement appeared to contradict the allegations brought by "Timothy Rowe". It had been sworn in July 2019, more than 12 months before its disclosure.
In August 2020, the New South Wales criminal histories of the three complainants, "Simon Walker", "Timothy Rowe" and "Laurie Redhead" were served.
In September 2020, Queensland criminal histories of the complainants "Simon Walker" and "Timothy Rowe" were served.
After setting out the detail of additional material served, Ms Tierney indicates that statements from at least 10 new witnesses were received in February 2021. Ms Tierney asserts that the majority of those statements are helpful to the defence case including a statement from a witness "Tanya Baker", which is said to completely undermine the allegation brought by "Timothy Rowe".
Ms Tierney next deposes to the detail of other Marist Brothers from whom witness statements had respectively either been obtained or not yet obtained and served, together with details, where it was able to be ascertained, of those Brothers who were now deceased. The ages of those who were still living were set out, together with the other details, in a table included in her affidavit. The ages of the various Brothers ranged between the early 60s and three of the still living Brothers who were in their late 80s.
Of eight Brothers identified with some certainty, four were still alive. As at June 2021 Police had obtained statements from only two of those. Of four identified Brothers who were deceased, two of them, Brother Flavian and Brother Thomas were nominated as first complaint witnesses.
Ms Tierney sets out a further table identifying additional witness statements which have not been obtained or provided. Requisitions from the defence to the Crown for statements to be taken from those witnesses were said to have been made continually.
Ms Tierney's second affidavit further sets out the detail of documentation which was either missing or not available and makes complaint about the provision of material "piecemeal".
Annexed to this second affidavit are copies of the actual communications seeking detailed requisitions from the Crown to which reference had been made in the body of the affidavit.
In her third affidavit (Exhibit 3: 30 August 2021) Ms Tierney annexed correspondence and annexures which she had caused to be sent to the forensic psychiatrist, Dr Mark Schramm in September 2019 and July 2020.
Included as an annexure was a report from Noosa Radiology dated 13 February 2019. That revealed age related involution or change and chronic ischaemic change following a CT of Mr Reilly's head. There was no acute intracranial abnormality evident.
An itemised list of observations from the live-in carer for the accused, Mr Bill Selden, was also forwarded to the psychiatrist. It indicated a number of episodes in early 2019 where the accused had been observed staring straight ahead and apparently unable to communicate. These transient episodes had led to the referral for the CT scan of his head.
A further report was sought from the forensic psychiatrist Dr Schramm in July 2020. An additional memorandum from the live-in carer Mr Selden expressed concerns about the cognitive functioning of the accused. He was said to be showing noticeable signs of forgetfulness and confusion. He had also suffered a number of "blackouts" which on two occasions had required his hospitalisation.
Various medical and hospital records were also included which showed numerous age-related medical issues.
Exhibit 4 on the application was an affidavit by the live-in carer of the accused, retired Marist Brother William Selden. Mr Selden, in his affidavit of 2 October 2020, indicated that he was 72 years of age. He does the cooking, cleaning, and maintenance of the property for both himself and the accused. Mr Selden expressed the opinion that over the past several years the accused had begun to show signs of mild dementia. The number of sudden blackouts and collapses had resulted in an ECG loop recorder implant and monitor required to be worn by the accused.
At the time of swearing this affidavit there were ongoing problems with travel between New South Wales and Queensland as a consequence of the pandemic.
Exhibit 5 was a further affidavit of William Selden sworn on 30 August 2021. Mr Selden said that there had been a slight deterioration in the accused's short-term memory since the end of 2020. This had resulted in confusion at times and the necessity for things to be written down so that the accused did not forget. Mr Selden further deposed that as well as difficulty with his hearing, the accused tired very easily and he was exhausted by 3pm on a regular day. His attention span was also said to be limited especially if the content of the conversation was complex.
Exhibit 6 was the first report from Dr Schramm, psychiatrist, dated 10 October 2019. In his extensive report, Dr Schramm reached a conclusion that at that time the applicant presented as an 89-year-old man with some degree of age-related cognitive impairment. There were risks that he would further and perhaps clinically suffer significant cognitive decline over the next few years. The psychiatrist was of the opinion that at that time, the accused passed the relevant "Presser criteria."
However, the psychiatrist was of the opinion that sessions in court should be no more than two hours at a time and that the court should be made aware that he may be less flexible or slower in his thinking and thus at risk of becoming confused or misrepresenting himself under "hostile questioning."
Exhibit 7 was an updated report from Dr Schramm dated 23 July 2020 and included the additional medical material and updated memorandum from Brother Bill Selden. The applicant retained the gist of the various allegations which he had discussed in detail with the psychiatrist at their earlier interview. Cognitive testing yielded a poorer result than the earlier interview with the psychiatrist, but it was still not at the point where he would officially be termed demented. Dr Schramm remained of the opinion that the applicant was fit to stand trial although he concluded: "Given that there has been some deterioration in the last seven months, it is not beyond possibility that his decline will persist and there will come a point (I will not predict when that might be) that his cognitive abilities are so impaired that he would be unfit for trial."
Exhibit 8 was the statement of "Raymond Chandler" dated 25 July 2019 which had not been served until August 2020. As indicated earlier, Ms Tierney in her first affidavit (Exhibit 1) asserts that this statement contradicts the allegations brought by "Timothy Rowe".
Exhibit 9 is a statement of "Tanya Baker" dated 18 February 2021 who had previously been in a relationship with "Timothy Rowe" for some 16 years. "Tanya Baker" describes having not had children with "Timothy Rowe" although each of them had children from previous relationships. She said that she had three adult children and "Timothy Rowe" had eight children. She described in her statement having accompanied "Timothy Rowe" to see a solicitor in an endeavour to obtain compensation for his twins due to issues they had whilst growing up.
"Tanya Baker" described an action being brought against the Marist Brothers based on the fact that "Timothy Rowe" had been a former resident at what she described as Westmead Boys' Home. She recalls "Timothy Rowe" "saying on quite a few occasions that he was not touched in any way by any of the Brothers."
On behalf of the applicant, it was submitted that the extreme delay, between 41 and 43 years, was such that rulings for the exclusion of evidence or forensic disadvantage directions to the jury would not be capable of affording an adequate remedy. It was submitted that both presumptive and specific prejudice has arisen as a result of the extreme delay and that the combined impact of the various factors would incurably deprive the accused of a fair trial.
It was submitted on behalf of the applicant that the length of the delay in the present matter approached the length of delay in both Morton (a pseudonym) v The Queen [2020] VSCA 49 and Pound v The Queen [2019] VSCA 279 in the Victorian Court of Appeal. It was submitted that the accused was not in any way responsible for the extreme delay and that in addition to the delay in lodging a complaint, there had been further substantial delay in the course of the investigation and the determination to add additional counts.
The relative seriousness of the alleged offending was an additional factor identified as relevant to the question of public interest and to the assessment of presumptive prejudice. In the present matter, the alleged sexual offending comprised, at that time, seven counts in the indictment. Whilst clearly serious, it was submitted that they were not "at the most horrendous end of the scale" to adopt the phrase used by the Court of Appeal in McGee v The Queen [2020] VSCA 146.
The remaining four counts related to physical assaults by use of the cane or in one instance a push. The court was reminded that 10 of the counts carried maximum terms of imprisonment of either 5 years or 2 years and were similar to those considered in McGee. There was one count relating to the complainant "Simon Walker" which carried a maximum term of imprisonment of 14 years.
Notwithstanding the strong public interest in criminal charges being brought to trial notwithstanding a lengthy delay, especially in relation to institutional sexual offences against children, it was submitted that this factor is but one of those required to be considered in the exercise of discretion regarding the granting of a permanent stay.
The age of the accused by the time of trial was also submitted to be a relevant factor. He would be approaching 93 years of age by the time of the then proposed trial in November 2022.
It was submitted that the deleterious impact that long delay has both on memory and the way in which evidence is given by a complainant at trial was the subject of specific observation in Bauer (a pseudonym) v The Queen [2015] VSCA 55 (per Priest JA at [100]).
With respect to most of the alleged offending conduct, there were no eyewitnesses to the offending. Whilst that circumstance is typical in many instances of childhood sexual abuse, crucial contextual evidence relating to the proximity to other boys in a dormitory assumed significance in an assessment of the credibility and reliability of the evidence of the complainants.
With respect to the allegation by "Timothy Rowe", the park ranger on North Stradbroke Island who may have been an eyewitness had not been able to be identified or spoken to by police. Such a potential witness would likely have been able to be identified if complaint or investigations had been made in a timely fashion.
It was submitted on behalf of the applicant that the extraordinary and extreme delay has had the effect of reducing his ability to defend the charges to what was characterised in Morton as "little more than a bald denial."
It was submitted with respect to presumptive prejudice that the circumstance of the alleged offending not being at the upper scale of such offending gave rise to a level of unfairness such that the "tolerance shown by the law for a trial to be attended 'to some extent' by unfairness, prejudice or forensic disadvantage as a result of delay has reached its limit" (Pound at [113]).
With respect to specific prejudice, the accused relied upon the combined effect of the following matters: 1. the age of the accused at the time of trial in the context of the relative seriousness of the alleged offences; 2. the accused's inability to recall the complainants in the context of his long career and the number of young people he has had contact with over that period of time; 3. the absence of records from St Vincent's regarding dormitory residents; those who attended weekend/ holiday trips and when; periods of leave the accused may have taken from school between 1978 - 1980; and floor plans (of the school); 4. the absence of the accused's own records and documents between 1978 and 1980; 5. the death or unavailability of other Brothers who worked at the school at the time of the alleged offences; 6. the death or unavailability of other witnesses; 7. central witnesses (including eyewitnesses) who had not provided statements to police (it being unclear if enquiries had even been made by police to locate them); 8. the absence of unknown material; and 9. the difficulty in testing contamination and collusion between complainants.

INITIAL SUBMISSIONS ON BEHALF OF THE CROWN

The Crown's written submissions similarly referred to a number of the leading authorities with respect to the principles to be applied in granting a permanent stay of proceedings. As with the written submissions on behalf of the applicant, I do not propose to restate those principles in detail. It suffices to be reminded that a stay of a criminal trial is an extreme remedy which will be reserved for the most exceptional cases: see Barton v The Queen [1980] HCA 48; 147 CLR 75 per Wilson J at 476; Jago District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 per Mason CJ at 582.
Evidentiary material was also tendered by the Crown. The voir dire bundle was marked as Exhibit 10 on the application. It included a copy of the then Indictment, a copy of the Crown Case Statement, five statements by "Simon Walker", one statement from each of "Laurie Redhead" and "Timothy Rowe", and a statement of Detective Senior Constable Troy Brewin.
The Crown submitted that the prejudice occasioned by a lengthy delay was not such that it could not be remedied by either the exclusion of evidence or directions to the jury. In the Crown submissions, the length of the delay did not of itself place the present matter into the 'exceptional' category that would warrant a permanent stay of proceedings.
With respect to the relative seriousness of the alleged offences, the Crown submitted that the nature of the offending in the then indictment was above the mid-range of objective seriousness in such types of matters and that the applicant's submission that the offending was not "at the most horrendous end of the scale" and thereby public interest in prosecution was decreased, was a submission that should be rejected.
The Crown also submitted that the age of the accused was not a factor which alone would warrant a stay of proceedings.
The Crown acknowledged that there were forensic disadvantages for the accused at trial as a consequence of the passage of time but asserted that such a factor was typical of historical sexual assault offences. The Crown did not agree that the ability of the accused to test the credibility of the complainants and their reliability was severely damaged as a result of the passage of time. In the Crown's submission, a warning pursuant to s 165B of the Evidence Act 1995 would sufficiently remedy any perceived prejudice as a consequence of delay.
With respect to specific prejudice identified by the applicant, the Crown relied upon the distinction in the circumstances before the court in R v Littler [2001] NSWCCA 173; 120 A Crim R 152. In that particular matter, at the invitation of Hodgson JA, an affidavit in support of the difficulties of both short and long-term memory was sworn and filed by the applicant during the hearing of the appeal. The affidavit provided the evidentiary basis upon which Hodgson JA and Greg James J upheld an appeal against a refusal to grant a stay in the District Court.
With respect to the absence of records from the St Vincent's Boys' Home, in the Crown submission it was anticipated that "This would be fruitful ground for cross-examination by the accused's representatives at trial." In the Crown's submission, the absence of the identified records would not render the trial "necessarily unfair."
With respect to the death of a number of identified potential witnesses, the Crown accepted that the death of those witnesses had an impact "both on the accused's case and on the Crown's case." However, in the Crown's submission, the combination of delay and disadvantage as a result of the loss of documents, the death of the identified witnesses, and the potential loss of memory of other witnesses, did not mean that the trial would necessarily be unfair. In the Crown's submission: "A fair trial is not synonymous with a perfect trial."
The Crown did, however, state: "Undoubtedly the accused's case is attended by a number of difficulties. Relevant material is no longer available. Witnesses who possibly might have given evidence that contradicted aspects of the complainant's evidence have died. Documentary evidence relating to the accused's employment at St Vincent's and his movements are no longer available." However, despite those various identified features, the Crown submitted that the prejudice to the accused did not outweigh the public interest of the charges being tried.

ADDITIONAL MATERIAL TENDERED AFTER THE HEARING IN SEPTEMBER 2021

On 9 September 2021, a further assessment of the cognitive capacity of the applicant was conducted by Dr Schramm, as had been anticipated.
It suffices for present purposes to observe that Dr Schramm formed the opinion that with respect to the majority of the allegations, the applicant could only recall the "gist" of them. In Dr Schramm's opinion, the applicant had not sought to exaggerate his memory difficulties and although there had been some further deterioration in his cognitive functioning since the last review in 2020, he had not yet reached a state of cognitive impairment to warrant a definitive diagnosis of dementia. However, in Dr Schramm's view, he was likely to reach that threshold over the next year or so.
The area of most cognitive decline at this assessment was that of memory function. Dr Schramm determined that the applicant's fitness for trial was "even more precarious at this point in time with this relative deterioration in cognitive function."
However, Dr Schramm concluded that he was still "fit for trial with certain caveats and allowances." Dr Schramm made recommendations which included the proposition that questions should be asked in a fashion which he described as "simple and single-barrelled", "in sequential order", "not leading" because of a risk of "reflex agreeing" and that they should "not include abstract concepts." Dr Schramm also expressed the opinion that a jury should be advised that the accused was cognitively impaired and therefore might be prone to inadvertently make occasional mistakes and that they should not assume that he was deliberately trying to mislead.
In further written submissions dated 4 October 2021, counsel for the applicant submitted that the significant memory deficit posed an intractable dilemma for the conduct of the applicant's defence. In the Defence submissions, this resulted in "an unfair and unacceptable restraint on the ability of the Defence to call the applicant."
The applicant's additional submissions set out the detail of the recommendations by Dr Schramm regarding the manner in which a trial should be conducted. I have referred to these in abbreviated form at [163] above. These inhibiting factors in the conduct of a trial, together with the then significant decay in the applicant's short-term memory, were pressed as factors warranting an exercise of the discretion to grant a permanent stay.
The Crown maintained its opposition to the granting of the application.
Following the delay in judgment being delivered, as outlined earlier in these Remarks, a further complainant was located and a statement obtained from "Elton John" on 26 March 2022. In light of the continuing cognitive decline of the applicant, as indicated earlier, a yet further updated psychiatric report was being obtained by the applicant.
Consequently, the Crown presented a fresh indictment containing the additional ex-officio counts to which I have already referred and the accused was arraigned on that fresh indictment in May 2022. The further assessment by Dr Schramm had been appointed for early June 2022.
As indicated at the outset of this judgment, that report concluded that the cognitive deterioration had increased to the stage that the applicant was now not fit to be tried.
The Crown then obtained a psychiatric report from Dr Adam Martin on 16 August 2022. It is appropriate to observe that in the course of the consultation with Dr Martin, the applicant thought that there were only "perhaps two" alleged victims. Dr Martin reviewed the various reports from Dr Schramm and concluded that Dr Schramm's summary of "collateral information" was accurate and comprehensive. Dr Martin formed the opinion that the applicant "probably can be diagnosed with major neurocognitive disorder, which is the DSM-5 description of dementia." Dr Martin thought that his own findings were reasonably consistent with those of Dr Schramm, from a clinical perspective.
Dr Martin formed a view that overall, the applicant was able to demonstrate an adequate understanding of the 'knowledge-based' Presser criteria, as they relate to the Australian legal process. However, his capacity to make a defence to the charge and give a narrative of events to his lawyers and to the court and to undertake cross-examination or to challenge evidence was likely to be impaired as a consequence of his cognitive decline. Dr Martin was not of the view that the fitness issues could reasonably be overcome by the court making a variety of allowances in the way of conducting the trial and concluded that it was "likely that the court would find Mr Reilly unfit to plead and unfit to stand trial."

APPLICANT'S ADDITIONAL SUBMISSIONS

The applicant's additional submissions effectively invited the court to give consideration to the unfairness of a special hearing.
In light of the findings by both psychiatrists, Dr Schramm and Dr Martin, the applicant submitted that, should the stay of proceedings be refused, the applicant's case would now proceed by a special hearing, unless the Director of Public Prosecutions determined not to proceed further with the charges: see s 53(2) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). It was submitted that if a special hearing was conducted and a qualified finding of guilt was made, the accused's now advanced age and his level of dementia would likely lead to his release to the care of a facility consistent with his current arrangements. No submissions were advanced as to the practical application of the circumstances that his "current arrangements" are not in New South Wales.
In written submissions on behalf of the applicant, it was urged that the findings of unfitness by the psychiatrists now overtake the Crown's arguments that appropriate rulings and directions would alleviate the prejudices identified in the earlier submissions on behalf of the applicant.
The applicant further submitted that in the event of a qualified finding of guilt, it was likely that he would be released by the Mental Health Review Tribunal, with or without conditions, pursuant to s 83 of the applicable legislation. It was submitted that the likely outcome of the special hearing was a relevant factor to be taken into account in the consideration of the application for a permanent stay. It was submitted that this was so because the public interest in the proceedings continuing would be more limited and would only relate to the disposition of the charges, rather than the possibility of a penalty being imposed.
Reference was made to McDonald (a pseudonym) v The Queen [2016] VSCA 304; 263 A Crim R 350 at [44] where the majority, Redlich and Ferguson JJA, said, in relation to an appeal against a refusal to permanently stay an indictment and special hearing: "The respondent rightly conceded however that it was relevant to have regard to the likely outcome of the proceeding if he were found to have committed the offences … it was highly unlikely that any form of supervision order would be visited upon him. Rather his unconditional discharge would be highly likely. In those circumstances the public interest in the proceeding was more limited. It played only in the disposition of the charges for serious offences."
In McDonald, the applicant had been 85 years of age and suffered from advanced dementia. The alleged offences had occurred some 30 to 34 years earlier and potential prejudice had been identified due to the death of a potential witness, the loss of employment records and the inability to locate other potential witnesses.
The majority in McDonald concluded at [48]: "This unusual combination of factors and the diminished public interest in the proceeding should have led to the stay of the proceedings. To proceed with a special hearing of the applicant would involve incurable, oppressive and unacceptable unfairness of such an order as to constitute an abuse of process, whether of the special hearing or the indictment."
An order staying the indictment was, accordingly, made.
In the submission of the applicant in the present matter, the combination of features in the present application should lead to a conclusion that it would "offend common humanity" for the proceedings to continue.

CROWN'S ADDITIONAL SUBMISSIONS

The Crown similarly filed additional written submissions. Those submissions summarised the additional reports by Dr Schramm and Dr Martin and submitted succinctly that any continuation of the proceedings "would not result in an abuse of process".
In its additional submissions the Crown placed significance on the judgment of the High Court of Subramaniam v The Queen [2004] HCA 51; 211 ALR 1. In the submission of the Crown, Subramaniam related to the very issue of an applicant's fitness to stand trial and deteriorating mental health. The Crown specifically relied upon the observations of the Court regarding the circumstances of a special hearing where the Full Court, Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ said at [29]: "The main difficulty for the appellant is 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 involved." The Act referred to was the Mental Health (Criminal Procedure) Act 1990 (NSW).
The Crown also referred to the decision of the High Court in Walton v Gardiner [1993] HCA 77; 177 CLR 378 at 396, where Mason CJ, Deane and Dawson JJ referred to the earlier decision of Jago v District Court (NSW) (1989) 168 CLR 23: "… the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice."
The Crown submitted in this matter: "that when consideration is given to the principles in both Subramaniam and Walton, the Court would conclude that the circumstances of the present case do not warrant a permanent stay being granted, and the application should be refused."

CONSIDERATION

The first observation which is appropriate with respect to the cases relied upon by the Crown is that Walton v Gardiner was in fact an appeal by the representative of the New South Wales Department of Health to the High Court against the decision of the NSW Court of Appeal, which had stayed proceedings in the Medical Tribunal against three doctors who had been the subject of complaint, including the use of deep-sleep therapy and electro-convulsive therapy at Chelmsford Private Hospital.
Notwithstanding the extract from the majority judgment relied upon by the Crown, their Honours proceeded to apply such relevant matters to be taken into account in a weighing process, as utilised in criminal proceedings, to the particular proceedings with which they were concerned, namely a hearing by a medical tribunal. In due course, the majority concluded that such a weighing process had been correctly utilised by the Court of Appeal and the application to the High Court against the order staying the proceedings was dismissed. The majority held that the proceedings had been properly stayed.
The second case principally relied upon by the Crown was Subramaniam. That was a case in which the former employee of a Sydney solicitor had been alleged to have falsely claimed that she had been the driver of her employer's vehicle with respect to a traffic infringement notice. The employee and the solicitor, Ms Leigh Johnson, had both been charged with two counts of perverting the course of justice. The employee, Ms Subramaniam, was committed for trial while Ms Johnson was discharged on both counts. The reason for the dismissal of the charges against Ms Johnson was that a covertly recorded conversation with Ms Subramaniam was admissible in proof of her guilt but was not admissible against Ms Johnson. Without that tape-recorded evidence there was insufficient evidence to put Ms Johnson on trial.
The original offending had occurred in 1996 when a false statutory declaration had been furnished and false evidence was given in proceedings relating to the traffic infringement notice. Ms Subramaniam stood trial in the District Court in 1999 before a judge and jury. The jury was ultimately discharged following its inability to reach a unanimous verdict.
Thereafter the appellant's mental health deteriorated considerably. In 2000, she brought an application for a permanent stay based on her deteriorating mental health. That application was heard and rejected by Gibson DCJ. The Court of Criminal Appeal rejected an interlocutory appeal against that refusal.
In 2001, the District Court directed that there be a hearing with respect to Ms Subramaniam's fitness to stand trial. Pursuant to the relevant provisions the Mental Health Review Tribunal found that the accused, Ms Subramaniam, was not fit to be tried and would not become fit for a period of 12 months.
Following that determination, in late 2001 the New South Wales Attorney General directed that a special hearing be conducted in accordance with the then relevant Mental Health legislation. In 2002, a permanent stay with respect to the special hearing was made and refused. The primary judge, the late Judge Luland, generally accepted the opinion of the accused's psychiatrist that she was suffering from an "adjustment disorder" which had become worse since the first application for a stay some 2 years earlier but his Honour was not satisfied that the evidence justified the grant of a permanent stay.
The matter thereafter proceeded to trial by a special hearing which under the legislation at that time was held before a jury. The jury returned a verdict of not guilty on the second charge of giving false evidence but a verdict on the other count of guilty in relation to making a false statutory declaration.
An appeal to the Court of Criminal Appeal was brought on two grounds. The first was based on the refusal of the stay application and the second was against conviction based on a challenge to the admissibility of the recorded conversation.
Beazley JA, Sully J agreeing ([2002] NSWCCA 372 at [42]), held that the inability of a person to be able to give evidence or otherwise meaningfully participate in a special trial was often the case. In those circumstances the majority did not see any appealable error in the stay application having been refused.
However, it is to be noted that in her dissenting judgment, Simpson J expressed the view that the "medical evidence was so overwhelming as to dictate that the proceedings be stayed - if not permanently, at least temporarily" (at [84]).
On appeal to the High Court, the Court was similarly not persuaded that the primary judge had erred in holding that the appellant's mental condition, or even its chances of deterioration, warranted the granting of a stay. The Court, per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ, observed at [34]: "The holding of the primary judge was essentially a factual one and included a discretionary component. His Honour's position was that it was in everyone's interest including the appellant's that the trial proceed as quickly as possible."
At the risk of repetition, the reference to the trial proceeding as quickly as possible was a reference to the special hearing which had been fixed and allocated to Luland DCJ and had been ready to proceed forthwith.
The High Court had observed earlier with respect to the appellant's submission that the mental condition was such that it would be "so oppressive to her as to justify a permanent stay" that: "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 emphasised, a special hearing, to proceed."
The High Court determined that the decision to refuse the permanent stay, in all of the circumstances, had not been inappropriate. It should, however, be noted that the mental condition of the applicant was, effectively, the only basis for the application. There had been no substantial delay between the alleged offending and the date of the hearing and the applicant was only in her early thirties.
The test referred to by the High Court, of circumstances being "out of accord with common humanity" was derived from observations by Lee J of the New South Wales Supreme Court who had refused an appeal against a stay of proceedings against Mr Frank Hakim which had been made by the magistrate in committal proceedings. Hakim was suffering from a declining and deteriorating medical condition as a result of ischaemic heart disease.
The stay initially ordered by the magistrate was appealed by the Crown to the Supreme Court. Lee J held that, to allow the charges to stand in the light of the continuing medical deterioration "would be out of accord with common humanity when the fact is also that he has already to some extent suffered prejudice in regard to his memory from the passage of time between the commission of the alleged offence and now".
The Court of Appeal, Gleeson CJ, Kirby P and Clarke JA, found no error in the approach of Lee J and dismissed an appeal against his judgment: DPP for NSW v Hakim BC8902177; (1989) 41 A Crim R 372. I should note in passing that the offending conduct which alleged a criminal conspiracy involving Mr Rex Jackson, then a Minister in the New South Wales Government, had occurred in April 1983. The permanent stay had been ordered by the magistrate in December 1987 and an appeal from that decision was dismissed in May 1988.
As indicated much earlier in these Remarks, both the Crown and the applicant have also made reference to a multiplicity of cases in which the relevant principles have been applied. I propose to refer to some of the cases in summary form only.
It is beyond argument that individual cases turn on their own facts and the exercise of discretion in determining whether or not a permanent stay should be ordered is, in the various individual cases, a matter upon which opinions may differ.
In Morton (a pseudonym) v The Queen [2020] VSCA 49 such differences of opinion regarding the exercise of discretion at first instance were starkly demonstrated in the Victorian Court of Appeal. The delay in that matter was in excess of 50 years and the applicant was 78 years of age.
Maxwell P came to a strong view that the first instance judges in the County Court in the respective matters for appeal were judges who had daily experience presiding over trials of sexual offences and were therefore exceptionally well placed to evaluate questions of forensic disadvantage of the kind that had arisen. The President formed a different view than the majority on the appeal with respect to the significance of a number of missing witnesses. The President would have refused the application.
Beach and Kyrou JJA reached a very different view. Their Honours concluded that the circumstances of the case were rare and exceptional, and they were firmly of the view that running the trial would be gravely unfair to the applicant. Their Honours determined that a permanent stay should be granted. The offending had occurred when the applicant was between 21 and 24 years of age. By the time of the application, he was 78. Some important witnesses were deceased and another was 90 years old with a poor memory. Other potentially relevant evidence in the form of employment records, tax returns and drivers' licenses for the period of alleged offending were no longer available. Floor plans of the houses at which the assaults were alleged to have occurred were also unavailable. The majority granted a permanent stay of the proceedings.
In TS v R [2014] NSWCCA 174, the New South Wales Court of Criminal Appeal upheld an appeal against a refusal to grant a permanent stay by her Honour Judge Huggett of the District Court. The applicant in that matter had been a teacher at a junior school in the 1970s. An indictment had been presented containing 47 separate counts alleging repeated sexual assaults against the complainant between July and November 1973. No complaint had been made until some 37 years after the alleged incident and by the time of trial there had been a delay of 41 years. The applicant had suffered significant cognitive decline and pursuant to the procedures then prescribed by the Mental Health (Forensic Provisions) Act 1990, a determination had been made that the matter would proceed as a special hearing pursuant to s 19 of that Act.
In the District Court, Huggett DCJ had refused an application for a permanent stay of the special hearing.
In determining whether the special hearing should have been permanently stayed, Bellew J found error in the manner in which the first instance judge had determined the relevance of the procedure under s 19. Having found error, the Court of Criminal Appeal proceeded to determine whether a permanent stay should be granted in the exercise of its own discretion.
Bellew J, Leeming JA and Adams J agreeing, said at [63]: "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." After stating the relevant principles, Bellew J proceeded to hold that the combination of a variety of matters gave rise to unacceptable injustice and unfairness warranting a permanent stay of the proceedings.
With respect to delay, his Honour said at [65]: "The offending conduct is alleged to have occurred more than 40 years ago. In the circumstances of the present case that is a factor which gives rise to a number of matters of significance."
Bellew J identified the absence of available documentary evidence and observed that it was open to infer that the documents sought were not able to be obtained because of the passing of time. His Honour also made reference to other material which was not available because of the period of time which had elapsed. His Honour then identified a variety of health issues in respect of which the applicant was suffering.
In addition to the fact of delay, the process of recollection by the complainant had been called into question and had been categorised by a retained psychiatrist as unreliable. That opinion by Dr John Roberts was based on queries regarding recovered or repressed memory.
Bellew J had also expressed doubt with respect to evidence being available and cross-admissible as tendency evidence. However, his Honour did not find it necessary to finally resolve that question.
The combination of circumstances, as I have already indicated, led the court to permanently stay the proceedings.
It should be observed that there have also been a number of cases in Victoria, in which a permanent stay has been granted where the proceeding stayed was to be a special hearing. These included the matter of Pound v The Queen [2019] VSCA 279 where the delay was over 50 years. The applicant was 83 years old and suffering from dementia as well as a host of other serious physical conditions. It was anticipated that he would, at best, watch proceedings in a special hearing via video-link. The most likely outcome of a special hearing was that he would receive an unconditional release, even if the charges were proven. Emerton JA, Whelan and Priest JJA agreeing, held that these factors, in combination, compelled the grant of a permanent stay of the special hearing.
In Arrivoli v R [2017] NSWDC 112, Buscombe DCJ similarly ordered a permanent stay of a special hearing under the Mental Health (Forensic Provisions) Act. The primary thrust of the application in that matter was the state of the physical and mental health of the applicant in combination with delay in the investigation and prosecution of the allegations. The allegations included sexual assault of an altar boy including acts of buggery. The allegations dated back some 42 to 43 years and the applicant was approximately 93 years of age by the time of the proposed special hearing.
Judge Buscombe made reference to the judgment of the High Court in Subramaniam in which the Court had endorsed the test from R v Hakim: "Would it be out of accord with common humanity, to allow the matter to proceed?"
His Honour applied that test, as approved by the High Court, and in all of the circumstances before the District Court on the application, Buscombe DCJ ordered a permanent stay of the special hearing.

DETERMINATION

Whilst recognising that the granting of a permanent stay is an extreme remedy which is to be reserved for the most exceptional cases, each case in which application is brought requires a careful consideration of not only the factors said to give rise to prejudice, but also of the combined force of the different factors so identified.
It may be that an individual factor tilts the scales in favour of a stay. Hodgson JA was of the view that the affidavit deposing to the detail of the identified memory loss was required in order to warrant the granting of a stay in Littler. The Crown pointed to that judgment as a point of distinction to the present application.
In the circumstances of the affidavits from the carer of the applicant in the present matter, which set out his observations of the applicant, together with the detailed reports from the psychiatrist Dr Schramm, and indeed that of Dr Martin, I do not regard the absence of an affidavit from the applicant himself is of any significance.
I have given careful consideration to the likely nature of the future proceedings. I have had regard to what in my view would be the potential, and likely, outcome of those proceedings. There is, for the reasons advanced by the Victorian Court of Appeal with respect to the mental health provisions in that State, a different and somewhat lessened public interest in the proceedings continuing.
The loss of likely relevant documents, as indicated in the course of submissions, the death of identified relevant witnesses, patent weaknesses in some aspects of the prosecution case, the identified physical ailments of the applicant, as well as his manifest cognitively deteriorated state, are collectively such that, in my view, it would be "out of accord with common humanity" for the proceedings to continue. The continuation of the proceedings in all of the circumstances would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.
I have borne in mind the serious nature of the allegations and the statutory purpose behind special hearings as discussed by the High Court in Subramaniam and I have similarly borne in mind the observations of Spigelman CJ in WRC.
I am ultimately of the view that the factors which I have identified constitute an overwhelming reason for the matter to not proceed to a special hearing.
I therefore order that the proceedings against John Patrick Reilly be permanently stayed.

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Mental Health (Criminal Procedure) Act 1990(NSW)

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