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Court of Criminal Appeal 12 June 2024

RC v Director of Public Prosecutions

[2024] NSWCCA 95

Sexual offences
CRIME PROCEDURE INTERLOCUTORY APPEAL APPLICATION FOR PERMANENT STAY APPLICANT UNFIT TO STAND TRIAL SPECIAL HEARING DIRECTED

Citation: RC v Director of Public Prosecutions [2024] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 12 June 2024
Judges: Basten AJA; N Adams J; McNaughton J

Background

The applicant, identified as RC, faces 39 counts of sexual misconduct against six complainants aged between 10 and 16 years. The alleged offending occurred between 1975 and 1983, when the applicant worked as a swimming instructor. All complainants were in his care at the time.

In December 2023, the District Court found the applicant unfit to stand trial, primarily because his ability to follow proceedings in a general sense was significantly compromised. The finding did not turn on an inability to understand the charges or plead, but on that more limited cognitive difficulty. The Director of Public Prosecutions then directed that a special hearing (a modified form of hearing for persons found unfit for trial) would proceed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

In May 2024, with the special hearing imminent, the applicant sought a permanent stay. He relied solely on his serious physical and mental health conditions, including terminal cancer, depression, and a risk of suicide. He did not allege any forensic prejudice arising from the passage of time. After a six-day hearing, the primary judge refused the stay. The applicant then sought leave to appeal to the Court of Criminal Appeal.

  • Whether the primary judge correctly applied the "common humanity" test from Subramaniam v The Queen, which asks whether proceeding "would be out of accord with common humanity"
  • Whether the primary judge erred in taking into account the possibility of excusing the applicant from attending the special hearing as an ameliorating measure
  • Whether a non-publication order should be made protecting the identity of the applicant

Decision

On the "common humanity" test, the Court held that the primary judge had not failed to apply the correct standard. The test requires a balancing of the applicant's health concerns against the public interest in addressing the charges. A stay of proceedings is an exceptional remedy, available only in rare cases, and a mere risk of injustice or unfairness does not suffice to warrant one.

The Court read the primary judge's reference to a "mere risk" as a conclusion that no "real risk with grave consequences" had been established, which was the correct threshold. The medical evidence did not satisfy the Court that proceeding with the special hearing, with appropriate safeguards in place, would create a serious risk of suicide. The stress caused by the hearing's length and scope was linked to the seriousness and extent of the alleged offending, and that provided only limited support for a permanent stay.

On the question of the applicant being excused from attendance, the Court found no error in the primary judge having regard to the possibility of steps to ameliorate the effects of the proceedings on the applicant's health. Although no such order had yet been made, it was not premature to consider that avenue when assessing whether a permanent stay was warranted. Leave to appeal on this ground was refused.

The Court did grant a non-publication order protecting the applicant's identity. Given the uncertainty around existing publicity and the steps required to manage the suicide risk, the Court held that suppression for a period of 28 days was necessary to protect the applicant's safety.

Orders Made

  • Leave to appeal granted on grounds 1(a) and 1(b) (concerning the "common humanity" test and the "mere risk" finding)
  • Leave to appeal refused on grounds 2(a) and 2(b) (concerning the possible order excusing the applicant from attendance)
  • Appeal from the District Court's refusal of a permanent stay dismissed
  • Non-publication order made prohibiting publication of any information tending to reveal the applicant's identity, applying throughout the Commonwealth of Australia
  • The non-publication order to apply for 28 days from the date of the orders (7 June 2024)

Key Takeaways

  • A permanent stay of criminal proceedings on "common humanity" grounds remains an exceptional remedy. The test, drawn from Subramaniam v The Queen, requires more than a mere risk of injustice: there must be a real risk with grave consequences before a stay is warranted.
  • Where a finding of unfitness to stand trial rests only on a limited cognitive difficulty (inability to follow proceedings in a general sense), rather than a broader incapacity, the threshold for a permanent stay is not automatically lowered.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a primary judge does not err by taking into account possible ameliorative measures, such as excusing the accused from attendance at a special hearing, when assessing whether a permanent stay is necessary.
  • The applicant's serious ill-health, including terminal cancer and depression, and the associated stress of a lengthy hearing were weighed against the public interest in addressing serious historical sexual offending. Those health concerns did not, on the evidence, meet the threshold for a stay.
  • Non-publication orders protecting an unfit accused's identity may be warranted where there is a risk that identification could itself exacerbate a suicide risk, even where the underlying stay application fails.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pt 4, Div 3, ss 36, 48, 56
- Criminal Appeal Act 1912 (NSW), s 5F
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21

Cases
- Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116
- GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857
- Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77
- The Queen v Edwards [2009] HCA 20; 83 ALJR 717
- R v WRC [2003] NSWCCA 394; (2003) 59 NSWLR 273
- TS v R [2014] NSWCCA 174
- Koschier v R [2024] NSWCCA 24
- Kitchingman v R [2023] NSWCCA 4
- R v Hakim (1989) 41 A Crim R 372
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102