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District Court 17 August 2023

R v Koschier

[2023] NSWDC 323

Sexual offences
CRIME APPLICATION FOR PERMANENT STAY

Citation: R v Koschier [2023] NSWDC 323
Court: District Court of New South Wales
Date: 17 August 2023
Judge: Fitzsimmons SC DCJ

Background

The accused, an 87-year-old man, faced an indictment alleging repeated sexual offences against two female complainants who are first cousins. The alleged offending spanned from 1961 to 1976, making the conduct between 47 and 62 years old at the time of the stay application. Both complainants first reported the allegations to police in 1997, but police suspended their investigation in April 1998 and no charges were laid. The investigation was reopened in 2021 following further statements from the complainants and additional witnesses, and the accused was arrested in September 2021.

Before the stay application could be heard, the court was required to assess the accused's fitness to stand trial. Expert evidence from a consultant geriatrician (instructed by the defence) and a psychiatrist (instructed by the Crown) agreed that the accused was unfit to stand trial, permanently and irreversibly so. In March 2023, Judge Hopkins found accordingly under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The Crown then determined that the matter would proceed by way of a special hearing under that Act, to be conducted by a judge sitting alone.

Following that determination, the accused pursued a permanent stay application on three grounds: his impaired cognitive functioning and the resulting forensic disadvantage, delay in bringing the prosecution, and the earlier decision not to prosecute in 1997.

  • Whether the accused's permanent and irreversible cognitive impairment meant that proceeding by way of a special hearing would constitute an abuse of process warranting a permanent stay.
  • Whether the delay of up to 62 years between the alleged offending and prosecution gave rise to presumptive or specific forensic prejudice sufficient to justify a permanent stay.
  • Whether the decision to prosecute after an earlier police decision not to proceed amounted to a defect in the prosecutorial process justifying a permanent stay.
  • Whether a solicitor's affidavit containing submissions rather than evidence could be treated as evidentiary support for the application.

Decision

Cognitive impairment and the special hearing framework

The court accepted that the accused's cognitive impairment was permanent and irreversible, and that the special hearing would proceed without a jury, before a judge alone. However, the court found that the existence of cognitive impairment, even serious impairment, does not automatically warrant a permanent stay. The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 expressly contemplates that an accused found unfit to stand trial may still face a special hearing, and the court found that this statutory regime itself provides safeguards. Applying the principles in cases including Dupas v R, Jago v District Court of NSW, and Gardiner v R, the court was not satisfied that the accused's impaired cognitive functioning produced such unacceptable injustice as to constitute an abuse of process.

Delay and forensic prejudice

The court acknowledged the very substantial delay involved, noting that the alleged offending commenced more than 60 years before the stay application. However, the court found that presumptive prejudice from delay is not sufficient on its own to justify a permanent stay. The accused was required to demonstrate actual (specific) forensic prejudice, and the court found the evidence fell short of establishing this to the required standard. A significant evidentiary problem arose because the solicitor's affidavit, which purported to identify the forensic disadvantage caused by the unavailability or death of witnesses, was not properly evidence at all. Defence counsel ultimately conceded this in the part-heard hearing. The court disregarded those paragraphs and took the opportunity to criticise the practice of solicitors swearing affidavits that contain submissions dressed up as evidence.

Earlier decision not to prosecute

The court was not satisfied that the original decision not to proceed with charges was a decision of the Director of Public Prosecutions. The evidence suggested it was a decision made by NSW Police, albeit with apparent input from police legal services and the DPP. Accordingly, any reliance on the ODPP Prosecution Guidelines to characterise the later prosecution as a defect in the prosecutorial process was not made out. The court found no basis to conclude that the decision to prosecute crossed the threshold of so profound a defect in the prosecutorial process as to offend the integrity of the court.

Weighing the public interest

Even where some degree of prejudice to an accused is established, a permanent stay requires that the continuation of proceedings would cause the administration of justice to fall into disrepute or constitute an unacceptable injustice. The court weighed the accused's interests against the substantial public interest in bringing to trial those charged with serious sexual offences. Given the gravity and repetitive nature of the alleged conduct involving two complainants, the court was not satisfied that the balance tipped in favour of a stay.

Orders Made

  • The application for a permanent stay was dismissed.

Key Takeaways

  • A finding that an accused is permanently and irreversibly unfit to stand trial does not, without more, establish grounds for a permanent stay of proceedings. The special hearing regime under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 itself contemplates proceedings continuing in such circumstances.
  • Presumptive prejudice from substantial delay is insufficient on its own to ground a permanent stay. An applicant must establish specific, actual forensic prejudice arising from the delay.
  • Solicitors' affidavits that assert forensic disadvantage through submissions rather than admissible evidence will not be treated as evidentiary support for a stay application. The District Court expressly discouraged this practice.
  • Where an earlier decision not to prosecute was made by NSW Police rather than the Director of Public Prosecutions, it does not necessarily engage the ODPP Prosecution Guidelines, and a subsequent decision to prosecute will not automatically be characterised as a defect in the prosecutorial process.
  • In permanent stay applications, the interests of the accused in a fair trial must be weighed against the substantial public interest in bringing those accused of serious criminal offences to trial. That public interest can tip the balance against a stay even where some degree of prejudice exists.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 54, 56, 62, 63
- Evidence Act 1995 (NSW), s 165B
- Mental Health (Criminal Procedure) Act 1990 (NSW)

Cases
- Barton v R [1980] HCA 48; 147 CLR 75
- Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
- Dupas v R [2010] HCA 20; (2010) 241 CLR 237
- Gardiner v R [2023] NSWCCA 89
- Jago v District Court of New South Wales [1989] HCA 46; 168 CLR 23
- Kitchingman v R [2023] NSWCCA 4
- Lucciano v R [2021] VSCA 12; (2021) 287 A Crim R 529
- McGee v R [2020] VSCA 146
- Morton v R (2020) 281 A Crim R 307
- Moti v R [2011] 245 CLR 456
- Moubarak by his Tutor Coorey v Holt [2019] NSWCA 102
- R v Adler (unreported) NSWCCA, 11 June 1992
- R v Burrell [2004] NSWCCA 185
- R v David Anthony McCarthy (unreported) NSWCCA, 12 August 1994
- R v Edwards [2009] HCA 20; 255 ALR 399
- R v Littler [2001] NSWCCA 173; 120 A Crim R 512
- R v Moore [2015] NSWCCA 316
- R v RD [2016] NSWCCA 84