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[2009] NSWDC 124
District Court of NSW
2009-06-05
Hunt J, Mason CJ, Brennan J, Deane J
Original judgment source is linked above.
The Applicant's Physical and Psychological Condition
30 The extensive psychological and psychiatric evidence does not raise any doubt about the applicant's fitness to be tried in the R v Presser (1958) VR 45 sense. Some of the material in Dr Rowe's report appears to suggest that there may be a Presser issue, but in oral evidence Dr Rowe made it clear that he was addressing the issues raised in Littler. Consequently, it is not incumbent on the Court to enquire into the applicant's fitness to stand trial: Kesavarajah v R [1994] HCA 41.
31 The applicant is 54 years old but presents as a much older man. Following a serious motorcycle accident in 1981, the applicant became depressed and began to experience occasional panic attacks. In the accident, he sustained a serious back injury. Since then, he has experienced chronic back pain. Between 1981 and 1984, the applicant undertook stressful work as a police officer. That work exacerbated his depression and panic attacks. In 2005, he underwent a quintuple bypass. He is a poor sleeper, obtaining only about four hours sleep a night.
32 On 8 April 2009, Mr Cipriani, a clinical psychologist, assessed the applicant by administering the Minnesota Multiphasic Personality Inventory (MMPI-2) and obtained a profile suggestive of a major depressive disorder. He said that the applicant may have associated cognitive impairment affecting attention and concentration, but he did not assess the applicant's cognitive function. Dr Rowe, a consultant neuro psychologist, considered the profile obtained by Mr Cipriani and administered further tests on 13 April 2009. He concluded that the applicant suffered from chronic dysthymia (low-level depression) and a major depressive disorder, which he characterised as severe. He reported that the applicant's severe depression meant that he had difficulty comprehending and following arguments and evidence, difficulty accurately and fluently communicating his version of the facts, and was distractable and inattentive. The applicant's ability to perform simple cognitive tasks was within normal limits, but his ability to perform complex tasks was significantly compromised. Dr Rowe's main concern was that the applicant would seriously disadvantage his case by performing poorly in court.
33 Associate Professor Glozier, who saw the applicant on 31 May 2009 and reported on behalf of the applicant, noted that cardiovascular disease is a strong risk factor for the onset of cognitive impairment. He concluded that the applicant had a chronic dysthymic disorder with periodic depressive episodes. Currently, the applicant was suffering an episode of major depression. Associate Professor Glozier characterised the episode as moderate rather than severe, but said that it inclined towards the severe end of moderate depression. He did not characterise the episode as severe because it was not severely impairing the applicant's personal, social or occupational functioning. He said that the applicant had a borderline impairment of concentration and short-term memory attributable to his psychiatric order, and that the impairment may hinder the applicant's ability to give evidence coherently and fluently.
34 On 8 May 2009, Professor Greenberg assessed the applicant by reference to the Presser criteria and found that he comfortably met those criteria. He diagnosed the applicant as suffering from a mild to moderate depressive disorder, partly associated with chronic backache. He said that the applicant's attention and concentration was impaired by stress, depression and pain but that the impairment was not substantial.
35 There is no suggestion that the applicant exaggerated his physical or psychological difficulties.
36 The applicant's psychological condition has impacted on his domestic, social and occupational activities. He does not want to socialise. He works 30 hours a week as a telemarketer. However, he has difficulty learning complex new tasks. He has applied for a promotion to the position of supervisor but does not anticipate being selected because he has been unable to master the necessary computer skills.
37 The issue is whether the delay and associated forensic disadvantage together with the applicant's cognitive impairment (which developed after the alleged abuse and may well have become worse after the 2005 bypass operation) are such that any trial will necessarily be unfair.
38 The applicant gave evidence and was cross-examined on the stay application. My observation of the applicant assisted me to understand the import of the expert evidence regarding cognitive impairment. The applicant hesitated before providing some answers. Some questions had to be clarified. However, overall the applicant acquitted himself reasonably well.
39 In the context of subsequent decisions affirming the importance of trial by jury and confirming that it is only in an extreme case that a stay of proceedings will be granted for abuse of process, there must be some doubt about whether the considerations to which Adams J adverted in the above passage from Littler can found the grant of a stay. Regardless of whether such matters are capable of founding the grant of a stay, it is my view that, in this case, when considered in combination with other forensic disadvantages flowing from the delay, the applicant's cognitive impairment is not such that any trial will necessarily be unfair. I am alert to the applicant's cognitive difficulties and will ensure that the trial process is such that he suffers no significant disadvantage because of his cognitive difficulties.
40 The application for a permanent stay of proceedings is refused.
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R
W
Austin (1995) 84 ACR 374 Barron v Attorney General for NSW (1987) 10 NSWLR 215 Barton v The Queen [1980] HCA 48 Basha (1989) A Crim R 337 Boulos v R [2008] NSWCCA 119 Jago v District Court of NSW (1989) 168 CLR 23 Hakim (1989) 41 ACR 372 Kesavarajah v R [1994] HCA 41 CASES CITED: R v Carver [1999] NSWCCA 135 R v Littler [2001] NSWCCA 173 R v Presser (1958) VR 45 R v Westley [2004] NSWCCA 192 R v WRC [2003] NSWCCA 394 The Queen v Davis (1995) 57 FCR 512 The Queen v Edwards [2009] HCA 20 Walton v Gardner (1992-3) 177 CLR 379 Williams v Spautz (1991-92) 174 CLR 509
6 The power to grant a permanent stay is discretionary: Basha (1989) A Crim R 337 per Hunt J at 339. The exercise of the discretion involves balancing the interests of the community and those of the applicant. There is a strong public interest in ensuring that persons accused of serious offences face trial: R v Carver [1999] NSWCCA 135 at [33]. Unless the interests of justice demand it, courts should exercise, rather than refrain from exercising their jurisdiction to try persons charged with criminal offences: Williams v Spautz at 519.
8 No narrow view of an abuse of process is appropriate: WRC at [54]. Before a stay may be granted, there must be "a fundamental defect which goes to the root of the trial", such that the trial judge will be unable to address the unfairness: Barton per Wilson J at 111, Jago per Mason CJ at 34, R v Littler [2001] NSWCCA 173 at [5]. There must be no available means of bringing about a fair trial. Usually, a trial judge's responsibility to avoid unfairness can be discharged by controlling the trial procedures, especially by giving directions to the jury that are designed to counteract any prejudice that the accused might otherwise suffer: Jago per Brennan J at 47.
10 The circumstances in which proceedings may be found to be an abuse of process are not susceptible of exhaustive definition: The Queen v Edwards [2009] HCA 20. However, delay and associated general prejudice will not create an abuse of process. Actual prejudice must be established: R v Westley [2004] NSWCCA 192 at [12].
11 In relation to criminal proceedings, delay is not infrequently associated with the death of witnesses, memory loss, or the loss of documents. When an absent witness's likely evidence is not known, any disadvantage arising from the witness's absence is speculative, and abuse of process cannot be established: Edwards at [33], Boulos v R [2008] NSWCCA 119 at [52]. Where delay has resulted in the loss of evidence by which a complainant's credibility might be tested, the issue can usually be addressed by an appropriate warning to the jury: Austin (1995) 84 ACR 374.
(1987) 10 NSWLR 215
(1989) 168 CLR 23
(1995) 57 FCR 512