Citation: R v Hugh Edward Murray [2011] NSWDC 258
Court: District Court of NSW
Date: 29 July 2011
Judge(s): GD Woods QC DCJ
Background
The accused faced charges of indecent assault against schoolboys allegedly committed during the 1960s and 1970s. He had previously been found unfit to stand trial in September 2010, and the Mental Health Review Tribunal determined in December 2010 that he was unlikely to become fit within the following twelve months.
The DPP sought a special hearing under the Mental Health (Forensic Procedures) Act 1990, which can proceed even where an accused has been found unfit for trial. The accused responded with a notice of motion seeking a permanent stay of that proposed special hearing, or alternatively a temporary stay to allow time for further cardiac assessment and possible treatment.
The central factual issue was the accused's severe cardiac condition. Medical evidence before the court, including from a treating cardiologist, established that the accused faced approximately a 50 per cent annual mortality risk even without the added stress of court proceedings, and that the stress of continued proceedings would materially increase his risk of a fatal cardiac event.
Legal Issues
- Whether the District Court had jurisdiction to permanently stay a special hearing on the basis of abuse of process
- Whether the accused's extreme medical frailty satisfied the legal test for a permanent stay of criminal proceedings
- Whether a temporary stay was an adequate or appropriate alternative remedy
Decision
Issue 1: Power to stay and applicable test
The District Court confirmed it holds inherent jurisdiction to stay proceedings that constitute an abuse of process, drawing on the High Court's decision in Jago v District Court of NSW (1989). The court noted that a permanent stay is a remedy of last resort and may only be granted where no other means is available to remedy a feature that would otherwise render the proceedings so seriously defective as to demand a stay, consistent with R v WRC [2003] NSWCCA 394.
The applicable standard for stays founded on medical frailty is whether continuing the proceedings would be "out of accord with common humanity." This test, drawn from R v Hakim (1989) and confirmed by the High Court in Subramaniam v R (2004), requires the court to weigh the accused's condition against the legitimate public interest in prosecuting serious offences and maintaining public confidence in the administration of justice.
Issue 2: Whether the test was satisfied
The court accepted the medical evidence that the accused was grievously ill and in imminent danger of death. His annual mortality risk stood at around 50 per cent even in stable conditions, and the court found it strongly likely that the stress of proceedings extending over several weeks would precipitate a sudden cardiac event and death. The court also accepted evidence that the stress would be at least as great for the accused if he remained at home waiting on the outcome as if he were present in court.
Taking all of this together, the court was satisfied that continuing the proceedings, even for a further day and certainly for the weeks or months a special hearing would require, would be inhumane and unfair. The threshold established in Hakim and confirmed in Subramaniam was met.
Issue 3: Temporary stay as an alternative
The court rejected a temporary stay as an appropriate alternative. One medical witness raised the possibility of further cardiac intervention, including a defibrillator or surgery. However, another expert considered the accused too far advanced in his cardiac disease for any clinical intervention to be realistically effective. The court did not need to resolve which expert was correct, because on either view the continuation of proceedings was inhumane and the case called for a permanent stay as a last resort.
Orders Made
- Permanent stay of the indictment granted
Key Takeaways
- A permanent stay of criminal proceedings on grounds of extreme medical frailty requires the court to be satisfied that continuing the proceedings would be "out of accord with common humanity," balancing the accused's condition against the public interest in prosecuting serious offences.
- The District Court confirmed that the inherent power to permanently stay proceedings for abuse of process extends to special hearings conducted under the Mental Health (Forensic Procedures) Act 1990 where an accused has been found unfit for trial.
- A permanent stay remains a remedy of last resort: the court must consider whether any alternative, including a temporary stay, is capable of addressing the defect before granting permanent relief.
- Where uncontradicted medical evidence establishes an imminent and grave risk of death from the stress of proceedings, and no realistic clinical intervention is available, the threshold for a permanent stay on humanitarian grounds may be satisfied even in prosecutions involving serious historical offences.
- The District Court treated as relevant that the psychological burden of ongoing proceedings falls on an accused whether or not they are physically present in court, a factor that weighed against a temporary stay as an adequate remedy.
Legislation and Cases Referenced
Legislation
- Mental Health (Forensic Procedures) Act 1990
Cases
- Jago v District Court of NSW (1989) 168 CLR 23
- Rogers v R (1994)181 CLR 251
- Walton v Gardiner and Ors (1993) 177 CLR 378
- R v Smith and Ors [1995] 1 VR 10
- R v WRC [2003] NSWCCA 394
- DPP v Shirvanian (1998) 44 NSWLR 129
- R v Hakim (1989) 41 A Crim R 372
- Subramaniam v R (2004) 211 ALR 1