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Court of Criminal Appeal 19 March 2012

RM v R

[2012] NSWCCA 35

Sexual offences
CRIMINAL LAW APPEAL SPECIAL HEARING

Citation: RM v R [2012] NSWCCA 35
Court: NSW Court of Criminal Appeal
Date: 19 March 2012
Judges: Whealy JA; R.S. Hulme J; Hidden J

Background

The applicant, a man with an intellectual disability, was charged with approximately twenty counts of sexual intercourse with a minor and indecent assault on a minor. The alleged offending occurred between 1989 and 1992, when the applicant was aged between 18 and 21. The complainant did not report the matter to police until September 2009, roughly twenty years after the alleged events began.

Because the applicant was found unfit for trial and unlikely to become fit within twelve months, the Director of Public Prosecutions initiated a "special hearing" under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW). A special hearing proceeds without a jury and operates on a modified standard, determining on the evidence available whether the alleged acts were committed, and allowing the accused to raise defences including mental illness.

At the conclusion of the evidence in the special hearing, the applicant applied for a permanent stay of proceedings. The trial judge refused that application. The applicant sought leave to appeal against that interlocutory refusal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW).

  • Whether the trial judge applied the correct legal test when refusing a permanent stay of proceedings.
  • Whether the substantial delay of approximately twenty years had caused irreversible unfairness to the applicant in adducing evidence relevant to whether the alleged offences were committed.
  • Whether the delay had caused irremediable prejudice to the applicant's ability to establish, on the mental illness defence, that he did not know right from wrong at the time of the alleged offences.
  • Whether the cumulative effect of multiple items of prejudice (including the deaths of witnesses, absence of records, and modifications to relevant premises) justified a permanent stay.

Decision

The Court of Criminal Appeal considered the correct test for a permanent stay, confirming that it is an extreme remedy. A permanent stay is warranted only where the apprehended defect is of such a nature that nothing a trial judge can do in the conduct of the proceedings can relieve against its unfair consequences. Whealy JA found that the trial judge had, at least in part, applied an incorrect formulation of this test, which was expressed in terms of whether the case was "extreme, singular or exceptional."

On the first broad issue, being whether delay had caused irremediable unfairness in litigating whether the offences occurred, the Court found no error in the trial judge's ultimate conclusion. The applicant's grounds concerning absent witnesses such as SM and AM, missing records, and physical changes to the premises did not individually or cumulatively rise to the level required for a permanent stay on this aspect of the proceedings. Leave to appeal on these grounds was refused.

The second issue, concerning the mental illness defence, received different treatment. The defence required the applicant to establish, on the balance of probabilities, that he did not know right from wrong at the time of the alleged offending. This is the test articulated by Dixon J in R v Porter (1933) 55 CLR 182: whether the accused, by reason of a mental disease or disorder, was unable to appreciate the wrongness of the particular act at the particular time, judged against the everyday standards of reasonable people. The Court accepted that delay may have caused irremediable prejudice specifically to the applicant's capacity to make out this defence, given that the burden rested on him.

Hulme J added that the onus lying on an accused does not automatically generate an entitlement to a stay merely because relevant historical material is unavailable. There must be a serious risk that the absence of the material has deprived the accused of a fair trial, assessed by reference to the nature and quality of evidence that remains available on the topic. The matter was remitted to the trial judge for fresh consideration on the mental illness issue alone.

Orders Made

  • Leave to appeal refused on all grounds except those relating to the mental illness issue.
  • In relation to the mental illness issue, the appeal is allowed and the matter remitted to the trial judge to consider afresh whether a permanent stay should be granted.

Key Takeaways

  • A permanent stay of criminal proceedings remains an extreme remedy, available only where the apprehended defect is of such a nature that nothing a trial judge can do in the conduct of the proceedings can relieve against its unfair consequences.
  • The Court of Criminal Appeal confirmed that framing the test in terms of whether a case is "extreme, singular or exceptional" risks misstatement of the governing principle, even if the practical outcome may sometimes be the same.
  • Where an accused bears the burden of establishing a mental illness defence, substantial historical delay may generate specific prejudice that warrants separate consideration from the broader question of delay in proving the facts alleged against the accused.
  • Under the R v Porter formulation, the relevant inquiry on a mental illness defence is whether the accused, at the time of the act, was capable of appreciating its wrongness by reference to the everyday standards of reasonable people, not wrongness in the abstract.
  • Absent historical material does not automatically support a stay: following Hulme J's observations, there must be a serious risk that its absence has deprived the accused of a fair trial, assessed against what evidence remains available.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 19

Cases:
- Agoston v R [2008] NSWCCA 116
- Barton v R (1980) 147 CLR 75
- Dupas v R (2010) 241 CLR 237
- Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
- R v Edwards (2009) 83 ALJR 717
- R v Glennon (1992) 173 CLR 592
- R v Porter (1933) 55 CLR 182
- R v RWO [2002] NSWCCA 133
- R v WRC (2003) 59 NSWLR 273
- Reg v S [1979] 2 NSWLR 1
- Stapleton v R (1952) 86 CLR 358
- Subramaniam v R (2004) 211 ALR 1