Citation: Regina v Littler [2001] NSWCCA 173
Court: NSW Court of Criminal Appeal
Date: 4 June 2001
Judge(s): Hodgson JA; Greg James J; Adams J
Background
The applicant, a 74-year-old man in poor health, faced an indictment in the District Court on charges relating to alleged offences said to have occurred between 38 and 46 years before the proposed trial. The complainants had come forward relatively recently, with complaints dating back to approximately 1994, and the applicant's matter had progressed through committal proceedings to the point of trial.
The applicant sought a permanent stay of proceedings in the District Court, arguing that the extreme delay, combined with his deteriorating health and significant memory impairment, made a fair trial impossible. The primary judge refused the stay, expressing the view that the medical evidence did not clearly support the applicant's claimed memory difficulties and that no culpable delay on the part of the prosecuting authorities had occurred since 1994.
The applicant appealed to the Court of Criminal Appeal, contending that the primary judge had mischaracterised the medical evidence and had wrongly declined to grant the stay.
Legal Issues
- Whether the primary judge erred in assessing the medical evidence concerning the applicant's health and memory capacity.
- Whether the applicant's age, ill-health, and long-term and short-term memory problems, combined with the extreme delay between the alleged offences and the trial, rendered a fair trial impossible.
- Whether any jury directions could adequately remedy the unfairness arising from those circumstances.
- Whether a permanent stay of proceedings was warranted as a remedy of last resort.
Decision
The Court of Criminal Appeal found that the primary judge had erred in his treatment of the medical evidence. Two expert witnesses, both called by the prosecution, had accepted that there was no malingering or deliberate obfuscation on the applicant's part. The primary judge had wrongly characterised their evidence as being "plainly against" the view that the applicant's health and memory problems would render a trial unfair. In some respects, the experts' evidence in fact tended to support that view.
The primary judge had also incorrectly equated the applicant's ability to recall broad features of his life history with an ability to recall matters relevant to a defence of the charges. As Adams J observed, if the applicant were innocent, the alleged events would not have been significant enough to be retained in memory. An ability to recall major life events therefore said little about his capacity to mount a defence.
Before delivering judgment, the Court invited the applicant to file an affidavit setting out in detail the matters he claimed he could not remember. The Court took the view that, given the serious nature of the charges and the interests of complainants, an applicant seeking such an extraordinary remedy should ordinarily be prepared to state on oath the particular difficulties he would face at trial. The applicant filed such an affidavit, which the Court accepted as carrying some weight, noting that the applicant had committed himself on oath to a position he would have to maintain if the stay were refused.
After considering all the circumstances, including the 38 to 46 year delay, the applicant's age and health, the absence of any directions capable of ensuring a fair trial, and the prosecution's own conduct in commencing committal proceedings without disclosing the use of the EMDR procedure on witnesses, the Court was satisfied that the grounds for a permanent stay were made out. All three judges agreed that no set of directions to a jury could adequately address the compounding difficulties arising from the delay, the applicant's condition, and the absence of any corroborating or contradicting evidence.
Orders Made
- Leave to appeal granted.
- Appeal upheld.
- Further proceedings on the indictments permanently stayed.
Key Takeaways
- A permanent stay of criminal proceedings remains a remedy of last resort, available only in the most exceptional circumstances where the unfairness is so severe and irreversible that any trial would constitute an abuse of process.
- Where an applicant is not unfit for trial but relies on health and memory difficulties to seek a permanent stay, the Court of Criminal Appeal indicated that the applicant should ordinarily be prepared to provide sworn evidence identifying the specific difficulties he or she would face in responding to the charges.
- Accurately characterising expert medical evidence is critical: the primary judge's error lay in treating evidence that the applicant was fit for trial as also ruling out that a trial would be unfair, when those are distinct questions.
- The proposition that a defendant's ability to recall major life events demonstrates adequate memory for a criminal defence was rejected. Where a defendant is presumed innocent, the events alleged by the prosecution would not necessarily register as memorable.
- Prosecutorial conduct during the period leading to trial remains a relevant factor in assessing a stay application. The Court of Criminal Appeal was critical of the prosecution's failure to disclose the use of the EMDR procedure on complainants prior to commencing committal proceedings, treating that omission as a source of culpable delay.
Legislation and Cases Referenced
Cases Cited:
- Jago v District Court of NSW (1989) 168 CLR 23
- Longman v The Queen (1989) 168 CLR 79
- Crampton v The Queen [2000] HCA 60
- R v Tillott (1995) 38 NSWLR 1
- R v Stringer [2000] NSWCCA 293
- R v George Adler (unreported, NSWCCA, 11 June 1992)
- R v Anthony Richard Goldberg (unreported, NSWCCA, 23 February 1993)
- R v Helmling (unreported, NSWCCA, 11 November 1993)
- R v McCarthy (unreported, NSWCCA, 12 August 1994)
- R v Tolmie (unreported, NSWCCA, 7 December 1994)
Legislation: No specific legislation was cited in this decision.