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Court of Criminal Appeal 18 July 2008

AGOSTON v R

[2008] NSWCCA 116

Fraud & dishonesty
CRIMINAL LAW PERMANENT STAY OF CRIMINAL PROCEEDINGS UNFITNESS TO BE TRIED

Citation: AGOSTON v R [2008] NSWCCA 116
Court: New South Wales Court of Criminal Appeal
Date: 18 July 2008
Judge(s): James J; Hoeben J; Hall J

Background

The appellant was an 81-year-old accountant charged with five counts of defrauding the Commonwealth under the Crimes Act (Cth). The prosecution alleged that between 1996 and 2001 he prepared and lodged income tax returns for clients that falsely overstated expenditure relating to Australian film productions. Criminal proceedings were commenced in 2006, several years after the Australian Taxation Office completed its audit in 2003.

Before any committal hearing took place, the question of the appellant's fitness to stand trial was raised in the Local Court. The matter was referred to the District Court, where the appellant applied for a permanent stay of the criminal proceedings.

In February 2008, District Court Judge Freeman refused the stay application. His Honour found that the appellant was unfit to be tried but declined to permanently stay the proceedings, concluding that the case did not meet the high threshold of exceptionality required for such an order. The appellant then sought leave to appeal that interlocutory decision to the Court of Criminal Appeal.

  • Whether the primary judge erred in finding there was no abuse of process arising from the prosecution's delay in bringing charges
  • Whether the primary judge erred in finding that the prosecution had not lost the right to proceed due to its conduct
  • Whether the primary judge gave insufficient weight to the appellant's medical condition, age, the complexity of the charges, and the delay in proceedings
  • Whether the combination of those factors made this an exceptional case warranting a permanent stay of criminal proceedings

Decision

All five medical experts who gave evidence, including the Crown's own retained experts, accepted in varying terms that the appellant was unfit to stand trial. The evidence pointed to progressive dementia consistent with Alzheimer's disease, supported by brain scans and neuropsychological testing. The Court of Criminal Appeal noted that even the Crown's psychiatrist, Dr Allnutt, accepted the appellant was unlikely to be able to give proper instructions, follow a trial, or give evidence, and that the appellant's condition had likely deteriorated further since that assessment.

Despite this unanimous medical picture, the Court confirmed that a finding of unfitness to be tried does not, by itself, justify a permanent stay. The Court drew on the High Court's analysis in Subramaniam v The Queen, which identified an important ameliorative purpose in the special hearing procedures available under the relevant legislation. Those procedures offer an unfit accused the opportunity to be acquitted through a special hearing, and the legislative intent is that those procedures should be followed rather than proceedings simply halted.

On the question of delay, James J agreed with the primary judge's conclusion that the delay between completion of the audit in 2003 and commencement of proceedings in 2006 did not, alone or in combination with other factors, amount to an abuse of process or warrant a stay. The Court found that the prosecution had not engaged in conduct that forfeited its right to proceed.

Grounds three and four, which contended that the primary judge had failed to give sufficient weight to the appellant's medical condition, age, complexity of the charges, and the delay, were also rejected. The Court found that all of those matters had been expressly addressed in the primary judge's reasoning. No error was established in the conclusion that the case was not sufficiently exceptional to warrant a permanent stay.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding that an accused is unfit to be tried does not automatically entitle that accused to a permanent stay of criminal proceedings; a stay remains available only in exceptional cases.
  • Where legislation provides a special hearing mechanism for accused persons found unfit to be tried, the court's preference is to give effect to that legislative framework rather than permanently extinguish proceedings.
  • In dismissing the appeal, the Court confirmed that the combination of factors relied upon, namely dementia, advanced age, serious physical illness, charge complexity, and prosecutorial delay, did not, without more, constitute the exceptional circumstances required for a permanent stay.
  • No error was established in the primary judge's treatment of prosecutorial delay; a gap between the completion of an investigation and the filing of charges does not necessarily constitute an abuse of process, particularly where the delay did not prejudice the accused in a material way.
  • The Court of Criminal Appeal's approach aligns with Subramaniam v The Queen, which recognises that victims also have an interest in seeing that a form of justice is done through the available special hearing procedures.

Legislation and Cases Referenced

Legislation:
- Crimes Act (Cth), s 29D (since repealed)
- Criminal Appeal Act (NSW), s 5F
- Mental Health (Criminal Procedure) Act (NSW), Part 1B, Division 6
- Customs Act (Cth)

Cases:
- Subramaniam v The Queen (2004) 211 ALR 1 (High Court of Australia)
- R v WRC (2003) 59 NSWLR 273 (NSW Court of Criminal Appeal)
- R v Sexton (2000) 77 SASR 405 (South Australian Court of Criminal Appeal)
- R v Hakim (1989) 41 A Crim R 372