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District Court 27 May 2024

R v RC

[2024] NSWDC 239

Sexual offences
REDUCED LIFE EXPECTANCY SUICIDAL IDEATION EVIDENCE OF PHYSICAL INDEPENDENCE EVIDENCE OF COGNITIVE THOUGHT PROCESSES

Citation: R v RC [2024] NSWDC 239
Court: District Court of New South Wales
Date: 27 May 2024
Judge: McGuire SC DCJ

Background

The accused, a 77-year-old former elite swimming coach, faced 39 counts of historical sexual offending alleged to have occurred during the 1970s and 1980s against six complainants who trained under him as elite swimmers. The charges ranged from indecent assault to carnal knowledge, with the alleged victims aged between approximately 10 and 16 years at the time of the offences.

Following his arrest in June 2022, the accused was found unfit to stand trial. The matter was therefore to proceed by way of a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which is a modified hearing process available where an accused lacks the fitness to participate in a conventional trial.

Before the special hearing commenced, the accused applied by notice of motion for a permanent stay of those proceedings. The application was supported by medical evidence and involved oral testimony, with additional reports tendered by both sides during the hearing.

  • Whether the special hearing should be permanently stayed on the "common humanity" ground, given the accused's age, impaired cognitive functioning, reduced life expectancy, and expressions of suicidal ideation
  • How to weigh the accused's personal circumstances against the substantial public interest in having persons charged with serious criminal offences brought to account
  • Whether available procedural measures (such as a judge-alone special hearing and a non-publication order) were sufficient to mitigate the stress and harm the accused claimed the proceedings would cause

Decision

The court applied the established principles governing permanent stay applications, including the "common humanity" ground recognised in cases such as R v Hakim and subsequent District Court decisions. That ground recognises that, in exceptional circumstances, proceeding with a trial or hearing may be so oppressive to the accused's physical or psychological condition as to be fundamentally unjust.

The court received and carefully considered the medical evidence concerning the accused's cognitive impairment, reduced life expectancy, and suicidal ideation. However, the evidence also indicated that the accused retained a degree of physical independence and cognitive functioning. The court placed particular weight on the availability of procedural accommodations: a judge-alone special hearing (which the court indicated it would likely order under s 56(8) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020) and a non-publication order restricting identification of the accused (which the court indicated it would likely be amenable to granting). Expert evidence from Dr Rosenfeld suggested these measures would significantly reduce the accused's stress levels if the hearing proceeded.

Balancing the accused's circumstances against the substantial public interest in bringing persons charged with serious criminal offences to trial, and the need to maintain public confidence in the administration of justice, the court concluded that proceeding with the special hearing would not be "out of accord with common humanity." The application was dismissed.

Orders Made

  • The application for a permanent stay of the special hearing was dismissed.

Key Takeaways

  • The District Court confirmed that the "common humanity" ground for a permanent stay requires a high threshold: it is not sufficient that an accused is elderly, cognitively impaired, or distressed by proceedings; the continuation of those proceedings must be fundamentally at odds with basic humanity.
  • Where procedural accommodations are available (here, a judge-alone special hearing and a non-publication order), a court will consider whether those measures adequately address the accused's asserted health and welfare concerns before granting a permanent stay.
  • A finding of unfitness to stand trial does not, of itself, entitle an accused to a permanent stay; the special hearing process under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is specifically designed to accommodate accused persons who lack full trial fitness.
  • The public interest in bringing serious criminal charges, particularly allegations of historical child sexual abuse involving multiple complainants, is a weighty consideration that courts must expressly balance against an applicant's personal circumstances on a permanent stay application.
  • Suicidal ideation and reduced life expectancy are relevant factors, but their weight can be diminished where medical evidence indicates that procedural accommodations would substantially reduce the accused's likely stress levels.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)

Cases
- Barton v R (1980) 147 CLR 75
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Walton v Gardiner (1993) 177 CLR 378
- Subramaniam v R [2004] HCA 51
- Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256
- R v Edwards [2009] HCA 20
- R v Hakim (1989) 41 A Crim R 372
- R v RD [2016] NSWCCA 84
- TS v R [2014] NSWCCA 154
- Kitchingman v R [2023] NSWCCA 4
- Koschier v R [2024] NSWCCA 24
- Arrivoli v R [2017] NSWDC 112
- R v Murray [2011] NSWDC 258
- R v Koschier [2023] NSWDC 323
- R v O'Neill (No 2) [2023] NSWDC 572
- R v Crawford (Unreported, Flannery DCJ, 1 November 2018)