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2
District Court 25 January 2017

Arrivoli v R

[2017] NSWDC 112

Sexual offences
CRIMINAL LAW SPECIAL HEARING PERMANENT STAY OF PROCEEDINGS

Citation: Arrivoli v R [2017] NSWDC 112
Court: District Court of New South Wales
Date: 25 January 2017
Judge(s): Buscombe DCJ

Background

The accused was a former Catholic parish priest facing three charges of buggery and attempted buggery alleged to have occurred in 1973 and 1974, when the complainant was a primary school-aged altar boy staying at the accused's presbytery. The complainant had first reported the matter to police in 2006 but indicated at that time he did not wish to proceed, and no investigation followed. The matter was later referred to NSW Police by the Royal Commission into Institutional Responses to Child Sexual Abuse, leading to charges being laid in November 2014.

Following committal for trial in December 2015, the accused was found unfit to stand trial in February 2016. The Mental Health Review Tribunal later determined he would not become fit within twelve months. The Director of Public Prosecutions directed that the matter proceed to a special hearing under s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW), a process that allows the court to determine, on the evidence, whether a verdict of not guilty should be entered, even though the accused cannot meaningfully participate.

By notice of motion filed in December 2016, the accused applied for a permanent stay of the special hearing. On the day the hearing was to commence, the accused was taken to hospital with chest pains. The stay application was then heard and determined on the evidence, including extensive medical material.

  • Whether the continuation of the special hearing would constitute an abuse of process by reason of being so unfairly and unjustifiably oppressive as to warrant a permanent stay.
  • Whether the 42 to 43-year delay in the allegations, combined with the accused's cognitive deficits, caused unacceptable prejudice to the defence.
  • Whether the accused's severe physical and psychiatric health conditions created a real risk of life-threatening harm if the special hearing proceeded.

Decision

Buscombe DCJ considered the governing principles for a permanent stay of proceedings, drawn principally from Jago v District Court of New South Wales (1989) 168 CLR 23. A permanent stay is an exceptional remedy, available where continuation of the proceedings would constitute an abuse of process by being so unfairly and unjustifiably oppressive that it would be out of accord with common humanity to allow them to continue.

The medical evidence established that the accused suffered moderate to severe dementia alongside a range of serious physical conditions, including ischaemic heart disease, a carotid artery blockage, chronic kidney disease, hypertension, asthma, glaucoma, and osteoarthritis. Expert psychiatric evidence from Dr Roberts and Dr Nielssen, which was uncontradicted, satisfied the court that proceeding with the special hearing carried a high likelihood of causing extreme anxiety and a real and significant risk of a life-threatening cardiac event. The proposal that the accused be prescribed beta-blockers and that the court sit for only two hours per day was accepted, on Dr Roberts's evidence, as insufficient to reduce that risk to an acceptable level.

His Honour also noted the significant delay in the proceedings, both in the age of the allegations themselves and the failure to investigate after the 2006 complaint. However, the court's ultimate conclusion rested principally on the medical evidence. The combination of the accused's frail cardiac condition and the level of anxiety the hearing would generate led the court to find that continuing would be so oppressive as to constitute an abuse of process.

The Court also acknowledged the serious nature of the charges and the statutory purpose behind special hearings as discussed by the High Court in Subramaniam v R (2004) 211 ALR 1, but was nonetheless satisfied that those considerations were outweighed in this case.

Orders Made

  • The special hearing under the Mental Health (Forensic Provisions) Act 1990 (NSW) was permanently stayed.

Key Takeaways

  • The District Court confirmed that a permanent stay of a special hearing is available as an exceptional remedy where continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process and be out of accord with common humanity.
  • Medical evidence of a real and significant risk of a life-threatening cardiac event, combined with moderate to severe dementia and multiple serious physical conditions, was sufficient to satisfy the court that the threshold for a permanent stay had been met.
  • Uncontradicted expert psychiatric evidence played a decisive role: where the Crown did not seek a further independent medical examination or challenge the expert opinions, the court accepted those opinions in full.
  • The serious nature of the charges and the statutory purpose of special hearings under the Mental Health (Forensic Provisions) Act 1990 were relevant but did not, on the facts of this case, outweigh the risk of catastrophic harm to the accused.
  • Practical measures proposed to reduce the accused's distress, such as reduced sitting hours and medication, will not necessarily be sufficient to avoid a stay where medical evidence establishes they are unlikely to reduce the risk to an acceptable level.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 79, 80
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 19

Cases
- Jago v District Court of New South Wales & Ors (1989) 168 CLR 23
- Subramaniam v R (2004) 211 ALR 1
- R v Edwards [2009] HCA 20
- R v Glennon (1992) 173 CLR 592
- R v Hakim (1989) 41 A Crim R 372
- R v Littler [2001] NSWCCA 173
- R v Presser [1958] VR 45
- R v WRC [2003] NSWCCA 394