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6
Court of Criminal Appeal 3 February 2023

Kitchingman v R

[2023] NSWCCA 4

Sexual offences
CRIME PROCEDURE INTERLOCUTORY APPEAL APPLICATION FOR PERMANENT STAY APPLICANT UNFIT TO STAND TRIAL CHARGE OF BUGGERY WITH CHILD

Citation: Kitchingman v R [2023] NSWCCA 4
Court: Court of Criminal Appeal, New South Wales
Date: 3 February 2023
Judge(s): Basten AJA; Dhanji J; R A Hulme AJ

Background

The applicant, an 87-year-old former Anglican priest, was charged in March 2019 with one count of buggery alleged to have occurred in 1977 and 1978 against a complainant who was then aged 12 or 13 years. In September 2020, the applicant was found unfit to stand trial, primarily because he was suffering from Alzheimer's dementia and poor physical health. The matter was accordingly directed toward a "special hearing," a procedure under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that allows proceedings to continue in a modified form where an accused cannot be tried in the ordinary way.

The applicant applied to the District Court for a permanent stay of the special hearing. District Court Judge McLennan SC dismissed that application on 2 November 2022, and the applicant sought leave to appeal that refusal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW).

The applicant argued the combination of significant delay in reporting the offence, resulting loss of evidence and witnesses, his advanced cognitive impairment, and his deteriorating physical health rendered any continuation of proceedings unacceptably unfair.

  • Whether proceedings by way of special hearing in the District Court constitute proceedings "on indictment" for the purposes of s 5F(1)(a) of the Criminal Appeal Act 1912, thereby permitting an interlocutory appeal.
  • Whether a refusal to grant a permanent stay of a special hearing is an "interlocutory judgment" amenable to appeal under s 5F.
  • Whether the primary judge erred by refusing to permanently stay the special hearing, in circumstances where the applicant was unfit to stand trial, had suffered significant cognitive and physical decline, faced forensic disadvantage from lost evidence, and the alleged offending occurred decades earlier.

Decision

The Court of Criminal Appeal granted leave to appeal, accepting it was appropriate for the factual and other issues to be fully ventilated. However, the Court dismissed the appeal on all three grounds.

On jurisdiction, the Court considered whether a special hearing qualifies as a proceeding "on indictment" for s 5F purposes and whether a stay refusal is an "interlocutory judgment." The Court engaged with both questions and was satisfied that the appeal was properly before it, noting the respondent had raised no jurisdictional objection.

On the substantive question of the permanent stay, Basten AJA reviewed the primary judge's reasoning at length. The primary judge had carefully assessed each element of the applicant's case: the delay and resulting forensic disadvantage, the loss of medical records in the 2017 floods, the applicant's inability to give evidence or meaningfully instruct counsel, and the palliation of his physical condition. Despite these circumstances, the primary judge found that the prosecution retained admissible evidence, that the alleged forensic disadvantage from lost medical records was not as significant as claimed given corroborating material from other sources, and that the Crown case was not so weak as to warrant a stay.

The Court of Criminal Appeal applied the principles from Jago v District Court of New South Wales (1989) 168 CLR 23 and Subramaniam v The Queen (2004), which require that a permanent stay be reserved for cases of fundamental injustice or unacceptable unfairness amounting to an abuse of process. Applying the House v The King (1936) standard for appellate review of a discretionary decision, the Court found no appealable error in the primary judge's reasoning. The conclusion that the proceedings could be conducted in an acceptably fair manner, with the judge conducting the special hearing able to identify and account for any forensic disadvantage, was not manifestly unreasonable.

Orders Made

  • Leave to appeal from the District Court judgment of 2 November 2022 (refusing a permanent stay) was granted.
  • The appeal was dismissed.

Key Takeaways

  • A permanent stay of criminal proceedings remains a remedy reserved for cases of fundamental injustice. The combination of delay, lost evidence, and the accused's cognitive and physical incapacity does not automatically compel a stay where the proceedings can still be conducted in an acceptably fair manner.
  • The Court of Criminal Appeal confirmed that the judge presiding over a special hearing has the capacity to identify forensic disadvantage, account for it in the conduct of the hearing, and address it in judgment, which is a relevant factor in assessing whether a stay is warranted.
  • Where a permanent stay refusal is challenged on appeal, the applicable standard is the House v The King test: the appellate court will only intervene if the primary judge made an error of legal principle, took into account irrelevant considerations, failed to consider relevant ones, or reached a conclusion so unreasonable as to be plainly wrong.
  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), a finding of unfitness to stand trial does not, of itself, preclude a special hearing from proceeding. The unfitness finding is a relevant consideration in a stay application, but it does not mandate that such an application succeed.
  • In dismissing the appeal, the Court balanced the interests of the accused against the public interest in determining serious criminal charges, including the interests of the complainant and the maintenance of public confidence in the administration of justice.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Crimes Act 1900 (NSW), s 79
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 49-51, 56(1), 57, 59, 63(2), Pt 4 Div 3, Sch 2 cl 7
- Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2, s 22A
- Mental Health Act 1958 (NSW), ss 23, 24
- Bail Act 2013 (NSW), s 6(1)

Cases:
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Subramaniam v The Queen (2004) 79 ALJR 116
- House v The King (1936) 55 CLR 499
- Moubarak bht Coorey v Holt (2019) 100 NSWLR 218
- R v Mailes (2001) 53 NSWLR 251
- R v Edelsten (1989) 18 NSWLR 213
- R v Steffan (1993) 30 NSWLR 633
- R v WRC (2003) 59 NSWLR 273
- Derley v R [2016] NSWCCA 60