R v Richards

District Court of NSW|2020-12-15|Before: Mr P

Pseudonyms have been used for the names of each of the complainants.

INTRODUCTION

The accused ('the Applicant') is charged on an indictment (filed on 16 October 2020) of 12 sexual offences against four complainants, all former boy students of his, allegedly committed decades ago. It is suggested, and the Crown ('the respondent') does not dispute, that there is a mistake in the date for the offence in count 1 which will eventually need to be rectified. In all, the Crown case is that the offences occurred in the date range from 1969 to 1985.
The accused has not yet entered a plea in relation to the charges.
By a Notice of Motion dated 18 November 2020, the accused has applied for a permanent stay of the proceeding on the ground that the proceeding constitutes an abuse of process.
In support of that application, the applicant relies upon the affidavit of his solicitor, Mr Daniel Wakim affirmed on 18 November 2020.
The Crown opposes the application. The respondent relies upon the affidavit of Ms Jessica Chan affirmed on 2 December 2020. Ms Chan is a solicitor employed in the Office of the Director of Public Prosecutions.

FACTUAL BACKGROUND

The respondent does not dispute the following factual background which is taken from the submissions of Counsel for the Applicant.
The Applicant is now 82 years of age. He is a Christian Brother and former teacher for many years in various all-boys schools run by the Christian Brothers Catholic order.

Earlier charges

In his affidavit, Mr Wakim deposed to the circumstance that the Applicant has been in continuous imprisonment since 7 November 2014, as a result of no less than three earlier prosecutions for sexual offences committed by the Applicant against 13 former students. There were 26 offences in total. The first prosecution was commenced in June 2013.
The ages of the students ranged from 10 to 15 and the date range of the offending was from 1966 to 1986. Sentences were imposed by Judges of this Court on 27 November 2014, 16 December 2016 and 17 October 2017. As to the last of the sentences, the Applicant's non-parole period is due to expire on 15 December 2021 and if he became eligible for parole, he would have served a term of imprisonment of 10 years, one month and 8 days with a non-parole period of 7 years, one month and 8 days.
All of the previous offending, save for two offences, were for 'non-penetrative' conduct. Most offences were for indecent assaults and acts of indecency. There were no earlier offences alleging buggery, or acts of attempted buggery or involving the exposure of the Applicant's penis, of the kind alleged in the new charges. The Applicant's Counsel contends that the offences charged in the 'new' prosecution are of a different nature to all previous offences.

Application for examination

On 24 June 2020, the Applicant unsuccessfully applied to a Local Court Magistrate for an application that certain police officers be examined, generally, as to the circumstances in which these charges were brought.

Medical evidence for the applicant

The Applicant relies upon opinions from a neuropsychologist, Dr Jane Lonie (27 February 2020) and a psychiatrist, Dr John Roberts (18 September 2020).
Dr Lonie reported that the applicant had no memory about the complainants, and complained of a loss of short-term memory and that he was concerned about his ability to provide meaningful instructions in defence of the charges. Dr Lonie noted the history that whereas a psychiatric opinion had been obtained in July 2017 to the effect that he had mild to early Alzheimer's disease, a neuropsychological evaluation of October 2017 did not support the presence of progressive dementia. Upon her examination of him in February 2020, Dr Lonie observed mild to moderate clinically significant declines in his speed of processing and working memory capacity. His score on the applicable screening measure fell below the lower boundary indicative of an underlying neurodegenerative process. She opined that he was capable of providing verbal instructions to his lawyers, but that he was still likely to experience difficulty in registering in its entirety, or taking in, new information containing detail and information that is presented to him. She noted that he was able to provide considerable detail of his educational and occupational history. She opined that he was capable of remembering or recalling instructions, or discussions he had had and plans made within the context of instructing his legal representatives, to the extent that he had registered information in the first instance. He was capable of entering a plea on the charges and also capable of enduring, in a physical sense, a lengthy trial.
Dr Roberts opined that the Applicant presented to him with a mild decline in cognitive function, but not so much that he would be deemed to be unfit to stand trial. He considered that the Applicant understood the nature of the charges against him, the nature of the proceedings, and the Court's processes, including a right to challenge. He understood the evidence against him even if he had no recollection of the persons concerned or the acts alleged. He was capable of making a defence and answering to the charges and to instruct. Dr Roberts added that to the extent that he was unable to remember the persons or comment on allegations, this would be a function of the effluxion of time consistent with the development of early Alzheimer's disease, but not to such extent that it would prevent his participation in the upcoming trial.

Explanation for how complainants brought complaints

Ms Chan deposed in some detail as to how and when the complainants brought their complaints, by reference to what they said in their respective police statements. I will refer to the complainants by acronym:

Complainant 'DP' explained that he came forward after watching a media report concerning Cardinal George Pell in March 2019;
Complainant 'MM' explained that in 2018, his recollections of the abuse he alleges that he suffered resurfaced when one of his sons, who was of the same age as him when he alleges he was abused, went on a school trip;
Complainant 'CG' gave a police statement one month after the Applicant's sentencing proceeding in October 2018; and
Complainant 'DJ' rang the police in March 2019 and attributed that approach to the possibility of events on television sparking his memory.

Ms Chan also gave evidence which set out the context in which the earlier proceedings were brought (see paragraphs 2-22 inclusive).
Ms Chan was not required to attend for cross-examination on her evidence in this motion. I accept her evidence.

POWER AND PRINCIPLES

There is no dispute about the Court's power and the relevant principles attending applications of this kind.
The Court is empowered to prevent its processes being used for a prosecution to prevent injustice, but such power should only be exercised in the 'most exceptional' circumstances: Jago v District Court (NSW) (1989) 168 CLR 23 at 31. The onus falls upon the applicant to establish an abuse of process and the onus is a heavy one: Williams v Spautz (1992) 174 CLR 509 at 529. In practical terms, an applicant must demonstrate that any defect - in this case the effect of delay - is of such nature that there is nothing that a trial judge can do in the conduct of the trial to relieve against its unfair consequences: Jago per Mason CJ at 34; Dupas v The Queen (2010) 241 CLR 237 at [35].
Although categories of abuse of process are not closed, one of them, which is the category relied upon here by the Applicant, is the use of the Court's processes in a way which is unjustifiably oppressive to one of the parties: Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325 per Keane J (concurring with the majority) at [170].
More generally, the question whether a criminal proceeding should be permanently stayed on the ground of abuse of process falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations, including 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: Walton v Gardiner (1993) 177 CLR 378 at 395-396. I note that there is no necessary dichotomy between these discrete aspects of the public interest.
In R v Edwards (2009) 255 ALR 399, the High Court, in a joint judgment, observed, at [31], that: "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."
In the context of determining the question whether a civil proceeding should be permanently stayed, in Moubarak v Holt [2019] NSWCA 102, Bell P (Leeming JA and Emmett AJA agreeing) said at [89] that a fair trial is not synonymous with a perfect trial. In his written submissions, relying upon what the President said in Moubarak at [71], Counsel for the Applicant sought to assimilate the principles applicable to grants of a permanent stay in civil proceedings to criminal proceedings. Whilst it is true that there is some degree of overlap, and whilst the formal categorisation of a proceeding as civil or criminal is not determinative (Jago per Mason CJ at 26), I am nevertheless cautious about transposing the principles from civil cases to the criminal sphere in an unqualified way; particularly given facets of the public interest involved in criminal proceedings, which are not apparent in the civil context, and other procedural and evidentiary features also not present in civil proceedings, such as trial by jury and s 165B of the Evidence Act 1995 (NSW), matters to which I will return to below.
In McIver v R [2019] NSWCCA 214 ('McIver'), a case decided after and without apparent reference to Moubarak, Johnson J (Gleeson JA and Price J agreeing) at [36] reaffirmed the test stated in Walton v Gardiner, to which I have referred. It is that test which I respectfully adopt in my consideration of this application.
His Honour also (at [50]) noted the requirements of s 165B of the Evidence Act, in relation to the directions that a Judge must (on application by a party) generally must give to a jury about the forensic disadvantages that attend delay.

THE APPLICANT'S ARGUMENT

Counsel for the Applicant submits that, in all the circumstances, the Applicant is being unfairly oppressed by a fresh prosecution and, accordingly, the Court's processes are being abused by reason of the following factors, considered individually or in combination: 1. the lengthy period of delay between the date of commission of the alleged offences and the commencement of the proceedings; 2. the sequential charging of all the offences, by way of separate prosecutions, since 2013; 3. an inability of the Applicant to give instructions due to his increasing age and ill-health; and 4. the Crown's refusal to provide requested full disclosure.
The Applicant's argument developed, in written and oral submissions, as follows.
First, there was a considerable period of delay between the date of the commission of the alleged offences and the date of the commencement of the proceeding. This has impinged upon the ability of the Applicant, and his legal team, to objectively research and test factual issues and to obtain relevant evidence (documentary and testimonial). Moreover, the delay inevitably affects the Applicant's capacity to remember matters and to provide coherent instructions. This is material in the case of the Applicant, firstly, because he has taught hundreds of students over many years. Secondly, although he is 'fit' to stand trial in the Presser sense (R v Presser [1958] VR 45), the medical evidence in support of his application indicates that he has no actual recollection of the complainants.
An associated submission, regarding delay, was the prejudice in relation to future and past sentencing. As to the latter, the net effect from earlier sentencing proceedings in relation to earlier offences is that the overall non-parole period will come to overwhelm the period that he would have been eligible for parole; unless a sentencing judge accords higher than expected level of concurrency in any future sentence. As to the former, had the charges been brought in 2014, the Applicant may have had the benefit of a discount on a plea, but that benefit is no longer available, by reason of s 25D of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act').
Secondly, the sequential charging of all the offences is productive of injustice to the Applicant. Although the Applicant's Counsel eschewed any suggestion of 'malfeasance' by the Crown, the Applicant does not know how the situation has come about that there have been, in effect, prosecution in four 'tranches'. All of the complaints might have been inspired by the recent Royal Commission and if they had all been tried together, public resources, and those of the Applicant, could have been concentrated. Having to undergo a fourth prosecution is unfair since the Applicant has only gotten older and vaguer in his recollections since earlier prosecutions.
Thirdly, and following the second point, although the Applicant meets the Presser threshold, medical evidence indicates that he has difficulty in giving any instructions to his legal team; and if he cannot recall, then he cannot effectively place his legal representatives in a position to advise him. Further, if he simply 'stands mute', recent statutory and case law developments in relation to criminal procedure, and tendency or co-incidence evidence, a conviction is 'almost inevitable'.
Fourthly, the Applicant's lawyers complain that the respondent has denied its request for disclosure of any details or documents concerning the statement made by one of the complainants, MM, regarding his visit to a psychiatrist and psychologist after he had experienced a few mental issues. The respondent denied that request and relied upon a decision of the Court of Criminal Appeal in Marwan v Director of Public Prosecutions [2019] NSWCCA 161 to justify its position.
Overall, Counsel for the Applicant submits that the Applicant has, through no fault of his own, been placed in an impossible and unfair position by the further prosecution and that the circumstances warrant the characterisation of them being oppressive.

CONSIDERATION

Although all of the factors relied upon by the Applicant should ultimately be viewed in combination, it is appropriate to consider each of them individually.
On the applicant's first point, I accept that the period of delay is very substantial, concerning events that go back nearly 50 years ago. However, there is an obvious and reasonable explanation for delay: the reluctance of the complainants to bring complaints sooner than they have. I consider that it is now a matter of common knowledge, for the purposes of s 144(1) of the Evidence Act, that due to the injuries inflicted on them by their abusers, survivors of sexual assault and other child abuse often take decades to understand and act on the harm arising from the abuse (Second Reading Speech of the Attorney General in relation to the Limitation Amendment (Child Abuse) Bill 2016 (NSW), cited in Moubarak at [35]).
Further, in circumstances where there is no limitation to the bringing of charges of the offending conduct in question, the significance of the length of delay is, I think, subordinated to the effect of delay. But in this regard, I accept the respondent's submission that the case is relevantly indistinguishable from the facts considered by the Court of Criminal Appeal in McIver, the decision I referred to earlier. That case involved an attempt to permanently stay a prosecution commenced in November 2016 against an 80 year old man for sexual offences relating to events in an institution between 1968 and 1974, and there was broad correspondence between the factors complained of by the applicant in that case to those which are now complained of by the Applicant in this proceeding: the age and health issues of the applicant; the length of time passing since the alleged incidents, including the death of witnesses and a loss of documentary evidence; and the asserted absence of corroboration concerning alleged offences. It is notable, also, that a factor which was submitted to the primary judge to strengthen the case for a permanent stay in McIver - the asserted weakness of the Crown case ([30] & [46] of Johnson J's judgment) - was not in terms invoked by the Applicant in his argument on this motion.
Of course, I acknowledge and accept that each application falls to be determined on its own facts, but the circumstance that the Court of Criminal Appeal should endorse the primary judge's decision to refuse a permanent stay based upon relevantly similar circumstances applicable to this Applicant is a matter that significantly weighs against the application, absent striking factual points of distinction.
I accept, further, the respondent's submission that the nature of forensic prejudice to the Applicant caused by the delay should not be overstated. The Applicant's Counsel did not specify or particularise what evidence had been lost. Given the passage of delay, the complainants were likely to have only limited detailed recollection of times and dates of incidents and the Crown case will rely, to a significant degree, upon objective information placing the Applicant at certain locations at the time. Also the nature of the offending is such that it would be unsurprising if there was true corroboration of what each individual complainant said. That is not likely to be materially different to most other cases of alleged historical sexual offending and, as was accepted in McIver, prejudice or unfairness to the applicant could be ameliorated by a direction under s 165B of the Evidence Act.
I also accept that for applications of this kind, it is not merely the personal - and public - interest of the Applicant receiving a fair trial which needs to be assessed, important though those interests undoubtedly are. The Applicant's submissions make no allowance to "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": Walton v Gardiner at 395-396. I would add to the interests of relevant 'stakeholders' the interests of the complainants in having their alleged complaints investigated, prosecuted and, should convictions arise, having their dignity recognised in subsequent sentencing proceedings.
My views as to the significance of delay are not altered because of the specific matters that the Applicant cites, in relation to the loss of sentencing discount because of legislation or consequences for length of non-parole period. The former is a matter for Parliament and the latter can be addressed in future sentencing proceedings under s 55 of the CSP Act.
I do not consider that there is any substance in the Applicant's point regarding the sequential charging of the applicant. In fairness, the point was raised in Counsel for the Applicant's written submissions prepared in advance of Ms Chan's affidavit, which set out in a summary fashion the circumstances in which the complainants made their complaints and the point was not pursued with vigour at the hearing of the motion. The evidence makes it plain that the complainants in relation to the subject counts have only come forward relatively recently. Their respective complaints were not held back by prosecutorial authorities with the design or effect of harassing the Applicant. This is not a case where it was, or could be, suggested, that misuse of court process by law enforcement authority afforded an independent ground to support a permanent stay: Jago per Mason CJ at 30.
The next point was the Applicant's complaint about his mental deterioration since earlier proceedings. I acknowledge that the medical evidence is suggestive of some relatively mild decline in his cognitive function, but both the medical specialists who supplied opinions for the Applicant in support of the Application indicated that he was fit to plead. His neuropsychologist indicates that he is capable of giving verbal instructions. His psychiatrist commented that he understands the evidence against him, even if he does not recall the incidents, and that he is capable of raising a defence and participating in the trial.
That being so, I accept the submission of the respondent, supported by observations of the Court of Criminal Appeal in R v Rivkin (2004) 59 NSWLR 284 at [298]-[300], that once it is found that the Applicant is fit to plead, it cannot necessarily be said that a trial will be unfair because the Applicant, because of his age and natural decline in his mental faculties, relative to other accused persons faced with similar offences, does not have the same intelligence or acuity of mind. He will also, if so advised, have the capacity to apply for a direction to be given to the trier of fact under s 165B of the Evidence Act to arrest, or limit, the forensic disadvantage of delay.
Further, it is no proper basis for a permanent stay of criminal proceedings that, since the conduct allegedly constituting the commission of the offences occurred, statutory changes to the procedure for offences of this kind, or principles relating to the admissibility of tendency or coincidence evidence, or sentencing discounts, have evolved. That, in effect, raises an objection involving constitutional considerations as to alteration of the 'playing field' on which the trial or subsequent sentencing proceeding is to be conducted, but it does not directly affect the Court's processes as such. Nor is there suggestion of any discrimination between the applicant and other accused persons charged with historical sexual offences.
The Applicant's final complaint about recent prosecutorial non-disclosure leads nowhere as Counsel for the Applicant acknowledged that his client intends to invoke coercive processes to obtain the documentation which it seeks. That is no basis for the stay.
Returning, then, to consideration of the factors raised for the Court's consideration, in combination, the Applicant's complaint boils down to the fact that now that he is bedevilled by old age, declining health and fading short term memory, he is now confronted with a fourth prosecution. But in the absence of any culpability by the investigative or prosecutorial authorities for the last circumstance, and given that the Applicant has been found to be fit to plead, with all that that entails, there is little, on the evidence, to distinguish the Applicant's position from other accused persons faced with complaints about sexual offences occurring decades ago. The possibility cannot be discounted that evidence has been lost and the capacity of the alleged perpetrator to recall events has diminished to some degree. That will be so in most, if not all, cases of trials for historical sex offences, and in my opinion, the disadvantages are not so peculiarly pronounced in the Applicant's case as to suggest that he cannot receive a fair trial.
It may be that the Applicant cannot obtain a perfect trial, but that is not to say that he cannot get a fair trial. I am not persuaded that the Applicant has discharged his heavy onus of making out his case for a permanent stay.
The application for a permanent stay is refused.

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 December 2020

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