Citation: R v Richards [2020] NSWDC 763
Court: District Court of NSW
Date: 16 December 2020
Judge(s): Abadee DCJ
Background
The accused, an 82-year-old Christian Brother and former teacher, faced 12 sexual offences across four complainants, all former male students at schools run by the Christian Brothers Catholic order. The alleged offending spanned the period from 1969 to 1985. These charges constituted a fourth prosecution: the accused had already been convicted and sentenced in three earlier proceedings involving 13 former students and 26 offences, and had been in continuous imprisonment since November 2014.
Medical evidence established that the accused suffered mild to moderate cognitive decline, including impairment to short-term memory and processing speed, consistent with early Alzheimer's disease. However, both a neuropsychologist and a psychiatrist agreed he remained fit to stand trial. He was capable of understanding the charges, instructing his lawyers, entering a plea, and enduring a lengthy trial, even though he had no recollection of the complainants or the alleged acts.
The accused applied by Notice of Motion for a permanent stay of the proceedings on the ground that continuing to prosecute him constituted an abuse of process, being unjustifiably oppressive in light of his age, health, cognitive decline, and the cumulative burden of multiple prosecutions.
Legal Issues
- Whether the prosecution of a fourth set of historical sexual offence charges constituted an abuse of process on the ground of oppression to the accused.
- Whether the combined effect of delay, the accused's cognitive decline, and his deteriorating health was so severe that no trial judge could remedy the unfairness, such that a permanent stay was warranted.
- Whether other factors, including alleged prosecutorial non-disclosure and changes to sentencing and evidentiary law since the alleged offending, supported the stay application.
Decision
Abadee DCJ applied the established framework for permanent stay applications, drawing principally on Jago v District Court (NSW) (1989) 168 CLR 23 and Walton v Gardiner (1993) 177 CLR 378. The power to stay proceedings exists to prevent injustice, but must only be exercised in the most exceptional circumstances. The onus on an applicant to establish abuse of process is a heavy one, and the applicant must show that the defect, here the effect of delay, is so serious that no trial judge could relieve against its unfair consequences.
His Honour accepted that the accused faced real difficulties: he was elderly, in prison, suffering cognitive decline, and confronting a fourth prosecution for offences allegedly committed decades ago. The complainants had come forward for varying personal reasons, including media coverage of high-profile cases, and there was no suggestion that investigative or prosecutorial authorities had acted culpably in causing delay. The timing of the charges was explained by when the complainants chose to report, not by any misconduct.
The Court found that the accused's position, while difficult, was not meaningfully different from that of other accused persons charged with historical sexual offences. Memory loss and the potential disappearance of exculpatory evidence are common features of such trials. Critically, his fitness to stand trial had been established, and tools within the trial process, including judicial directions under the Evidence Act 1995 (NSW), remained available to address the forensic disadvantage arising from delay.
On the remaining grounds, his Honour found that changes to sentencing discounts, tendency and coincidence evidence rules, and alleged prosecutorial non-disclosure did not support a stay. Those matters either fell outside the scope of abuse of process doctrine or could be addressed through other procedural mechanisms. The accused might not receive a perfect trial, but that was not the standard. His Honour was not persuaded that the heavy onus had been discharged, and refused the application.
Orders Made
- The application for a permanent stay of proceedings was refused.
Key Takeaways
- A permanent stay for abuse of process requires truly exceptional circumstances; it is not available merely because a trial will be difficult or imperfect as a result of the passage of time.
- The heavy onus on a stay applicant requires a showing that no trial judge can remedy the unfair consequences of delay, not merely that the accused will suffer some forensic disadvantage.
- Where delay in reporting historical sexual offences is attributable to complainants' personal circumstances rather than prosecutorial or investigative misconduct, the absence of state culpability weighs significantly against a permanent stay.
- Fitness to stand trial is a relevant and weighty consideration: once an accused is found fit to plead and to instruct lawyers, his or her position is not readily distinguished from that of other accused in historical sex offence cases, even where cognitive decline is present.
- Subsequent changes to evidentiary rules, sentencing discounts, or tendency evidence procedure do not, in themselves, constitute an abuse of the court's processes sufficient to ground a permanent stay application.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D, 55
- Evidence Act 1995 (NSW), ss 144, 165B
Cases:
- Dupas v The Queen (2010) 241 CLR 237
- Jago v District Court (NSW) (1989) 168 CLR 23
- Marwan v Director of Public Prosecutions [2019] NSWCCA 161
- McIver v R [2019] NSWCCA 214
- Moubarak v Holt [2019] NSWCA 102
- R v Edwards (2009) 255 ALR 399
- R v Presser [1958] VR 45
- R v Rivkin (2004) 59 NSWLR 284
- Strickland (a pseudonym) v Director of Public Prosecutions (2018) 266 CLR 325
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509