Refusal to Stay the Proceedings
16 It is convenient in the first instance to deal with the appeal from his Honour's refusal to stay the proceedings.
17 The appellant's trial was a special hearing conducted under the provisions of s 19 of the Mental Health (Criminal Procedure) Act (the Act) (MH(CP) Act). The special hearing proceeded upon the appellant having been found unfit to be tried on 16 March 2001. An inquiry before the Mental Health Review Tribunal held on 26 March 2001 came to the same decision. On 25 September 2001 the Mental Health Review Tribunal determined that the appellant would not be fit to be tried within a further twelve months. The Act provides that if the Attorney-General is so notified, the Attorney-General may direct that a special hearing be conducted in respect of the offence with which the person is charged: s 18(a). Section 19(1) then provides:
"If the Attorney-General directs that a special hearing be conducted … the appropriate court must, as soon as practicable after the Attorney-General so directs, conduct a special hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged … "
18 On 28 November 2001, the Attorney-General directed that there be a special hearing in respect of the two offences with which the appellant was charged.
19 Section 21(1) provides that, except as provided by the Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. The accused person must be represented by counsel unless the court otherwise allows: s 21(2). Subsection (3) provides:
"At a special hearing (a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged; and … (c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings; and (d) without limiting the generality of subsection (1), the accused person is entitled to give evidence." (emphasis added)
20 Section 22(1) specifies the verdicts which may be given at a special hearing including:
"(a) not guilty of the offence charged
…
(c) that on the limited evidence available, the accused person committed the offence charged.
(d) …"
21 An appeal lies from a verdict under s 22(1)(c) in the same manner as a verdict in an ordinary trial: s 22(3)(c).
22 If the jury delivers a verdict in accordance with s 22(1)(c), the court must, indicate whether, if the special hearing had been a normal trial, it would have imposed a sentence of imprisonment or penal servitude and where it would have done so, it must nominate a term (a "limiting term") being the best estimate of the sentence the court would have considered appropriate if the special hearing had been a normal trial: s 23(1). If the court indicates that it would not have imposed a sentence of imprisonment or penal servitude, it may impose any other penalty or make any other order it might have made on conviction in a normal trial of criminal proceedings: s 23(2).
23 In the present case, the jury having brought in a verdict under s 22(1)(c), his Honour proceeded under s 23(2) and made an order under s 9 of the Sentencing Act.
24 The special hearing was the second hearing of the charges against the appellant. She had first been tried on 23 August 1999. However, after a ten day trial, the jury was unable to reach a verdict. At that trial, the appellant had given evidence. Shortly after the conclusion of the trial, the appellant came under the care of Dr Menzies, psychiatrist. He diagnosed her as suffering from an adjustment disorder with anxiety and depressive features. He described her symptoms as being severe. He recorded the illness as having commenced in February/March of that year, when she was notified that she was to stand trial. Dr Menzies also reported some gradual relief of symptoms at the conclusion of the trial, followed by an escalation of her symptoms once she was notified there was to be a re-trial. Dr Menzies considered, as at November 1999, that her mental health was at risk whilst she awaited the re-trial. The appellant remained under the care of Dr Menzies up until the time of the special hearing.
25 Dr Menzies was of the opinion that the appellant's condition was "consequent upon [her] trial and its sequelae". By May 2000 Dr Menzies was reporting on the appellant's "suicidal intent". This remained, in his opinion, a real possibility during the course of that year. In February 2001, Dr Menzies recorded, "a marked deterioration in [the appellant's] mental health" and expressed the opinion that she was not fit to attend court on 19 March 2001. This appears to be a reference to the hearing of the appellant's fitness to be tried on 16 March 2001. On 11 February 2002, Dr Menzies reported that the appellant remained psychologically fragile and remained under medication. He considered that "there is no doubt that participation in a future 'special hearing' would result in a resurgence of her previous extreme symptomatology and the risk of suicide".
26 On 23 April 2002, the appellant applied to the court for a permanent stay of proceedings.
27 Dr Menzies, who was called to give evidence on this application, said that between the period February 2001 and April 2002 he considered that there had been a slow but gradual deterioration in the appellant's mental state. Her high levels of anxiety remained, she had episodic depression and her sleeping patterns were "appalling". When asked about the appellant's capacity to attend and participate in the special hearing, Dr Menzies expressed the opinion that the appellant could not give evidence and stated that it was his understanding that the appellant could not come to court voluntarily. He considered that if she was brought to the court involuntarily, "she might feel nauseated, she might think she is going to vomit, she might vomit …". In response to the question: "could she participate in the proceedings in any way by giving information, meaningful information to her solicitors …", Dr Menzies said:
"No. I think one of the things that is obvious is that with her high level of anxiety over many - what is now many years, this had interfered with her memory and so her recall of events and times and time periods and sequences and things, I think is markedly impaired and will not return, will never return."
28 He considered that it was possible that there was a risk of psychiatric damage or self harm if she was forced to attend court. Dr Menzies reiterated his concern, which he said he had held for a long time that the appellant could commit suicide.
29 On the application for the stay before the trial judge, the appellant's counsel submitted that it would be contrary to the interests of justice for the special hearing to proceed because it could have the effect of oppressing the appellant and leading to a deterioration of her current mental state. He pointed out that she would not be able to participate meaningfully in any way, in contrast to her first trial were she had given evidence but the jury was unable to agree. Counsel submitted that it would be "overbearing and oppressive to subject [the appellant] to a special hearing given the circumstances overall that led her here". Counsel referred to the comment which had been made by Judge Stewart, who had been the trial judge in the first trial, that "what began as a trivial matter, going through a red light, has avalanched to this". Counsel added that the matter had "avalanched even further where the Attorney-General demands a special hearing".
30 The trial judge, notwithstanding that he accepted Dr Menzies evidence, refused the application for the stay. He said "whilst I accept [the appellant] has an adjustment disorder, and that it has become more serious, I am not satisfied on the totality of the evidence that I should permanently stay the matter".
31 Counsel for the appellant submitted that a stay ought to be granted where the trial is (a) so unfair as to warrant a stay or (b) is so oppressive as to require it: Jago v District Court of NSW (1989) 168 CLR 23 at 60. He submitted that a stay ought to have been granted here, advancing the same submissions as had been advanced to the trial judge, adding that the appellant's mental condition had deteriorated, that her memory was affected and was unlikely to return, that her participation in the trial was meaningless, that she could not give evidence and that suicide was a possible outcome. It was submitted that in the circumstances, the appellant's mental health was sufficiently serious to dictate that the appellant could not participate in the trial so that the court should have ordered a stay and the trial judge's discretion had miscarried in refusing the application. It was also submitted that the trial judge's discretion had not been exercised in accordance with proper principle because the appellant's inability to meaningfully participate and to give evidence were substantial matters that the court should have taken into account, but his Honour did not do so.
32 A determination to grant or refuse a stay is discretionary and, therefore, may only be disturbed by an appellate court within the bounds of the well known principles in House v The King (1936) 55 CLR 499 at 504-505. It is necessary, therefore, for the appellant to show that his Honour, in refusing to grant the stay:
"…that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not taken into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so."
See also R v Alexandroaia (1994) 81 A Crim R 286 at 290; R v H [2002] NSWCCA 355.
33 There is no dispute between the parties as to the principles to be applied in the determination of the question whether there should be a permanent stay of proceedings. They were correctly identified in the appellant's submissions: see Jago per Mason CJ at 31, Brennan J at 49, Deane J at 60, Toohey J at 71, Gaudron J at 76-77.
34 In Jago, Mason CJ at 30-31 explained the basis of the power to grant a stay and the circumstances in which it is appropriate to exercise the power:
"The continuation of processes which will culminate in an unfair trail can be seen as a 'misuse of the Court process' which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a matter which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broader view of the concept of abuse of process in Reg. v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness."
35 See also Gaudron J at 76, who explained that the power to grant a stay is confined by the very nature of the power being exercised:
"The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia (1987) 61 ALJR 393 at 399, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals'. Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v Watson [1987] 20 Leg Rep SL 1, 'sparingly and with the utmost caution'. See generally, Cocker v Tempest (1841) 7 M & W 502; 151 ER 864; Lawrance v Norreys (1890) 15 App Case 210 at 219; Reg v Humphreys [1977] AC 1 at 26; and Reg v Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164 at 168."
36 Jago was a case which involved delay in the prosecution of certain criminal proceedings. The essential question for the Court's determination was whether the delay was undue and if so whether there should be a permanent stay of proceedings.
37 In this case, it was not only alleged that the proceedings had become protracted, it was also contended that because of the deterioration in the appellant's mental condition she has lost the ability to effectively participate in the trial. It was submitted that his Honour failed to take this latter consideration into account in refusing the stay. On the evidence, these complaints appear to be interrelated in that the continuation of the proceedings over a long period had seriously affected the appellant's mental condition.
38 Whilst these charges were laid over 6 years ago, the delay has been caused in part at least because of the inability of the jury to reach a verdict. No other factors were relied upon in support of this part of the argument. I do not consider, therefore, that a stay ought to have been granted because of delay per se.
39 The real basis which is now advanced as justifying a stay, is the appellant's mental state.
40 Although his Honour's reasons are short, he took into account the deterioration in the appellant's condition. He did not say in express terms that that meant the appellant would not be able to effectively participate in the proceedings. However, that was gainsaid. She had been found unfit to be tried under the MH(CP) Act. The appellant's own psychiatric evidence, which his Honour accepted, made it clear that her participation in the trial was going to be limited. His Honour considered that the best course in all the circumstances was for the trial to proceed as quickly as possible. It is, accordingly, apparent that his Honour's took into account the appellant's limited capacity to participate in a trial.
41 The appellant submitted, however, that the position was exacerbated here as a jury had been unable to reach a verdict at her first trial when she had given evidence. It was thus unfair that she should now be subjected to a trial in circumstances where she would not be able to give evidence in her own defence. In other words, because of the deterioration in her mental condition, she was deprived of an important evidentiary base upon which to advance her case at the special hearing, namely her own evidence. The point of the appellant's submission, as I understand it, is that his Honour also overlooked this matter, and, in any event, erred in failing to give effect to it. I do not think he overlooked this particular aspect of the appellant's submission. The submission was put to him and as I have already indicated, it was integral to the nature of the application made. His acceptance of the appellant's medical experts, his reference to the earlier District Court proceedings and the earlier application for a stay are sufficient to indicate that his Honour was fully appraised of the submission put and its relevance and that his determination followed an appropriate consideration of these matters.
42 Nor do I consider his Honour erred otherwise in refusing the stay. It is often the case that, because of a person's mental condition, the person is not able to give evidence or otherwise meaningfully participate in the trial. As I have said, his Honour considered that the interests of justice were best served by the trial proceeding as soon as possible. His Honour took that view fully cognisant of the appellant's then mental state. It is often the case with a person being tried under the MH(CP) Act that he/she cannot, in any practical or meaningful way, participate in the trial. Accordingly, I do not see any appellable error in his Honour having refused the application.