Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RC v Director of Public Prosecutions [2024] NSWCCA 95 Hearing dates: 7 June 2024 Date of orders: 7 June 2024 Decision date: 12 June 2024 Before: Basten AJA; N Adams J; McNaughton J Decision: (1) Grant leave to appeal on grounds 1(a) and (b). (2) Refuse leave to appeal on grounds (2)(a) and (b). (3) Dismiss the appeal from the judgment in the District Court refusing a permanent stay of the special hearing. (4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground that the order is necessary to protect the safety of the applicant pursuant to s 8(1)(c) of the Act, prohibit the publication of any information tending to reveal the identity of the applicant in connection with the proceedings in this Court. (5) Order (4) is to apply throughout the Commonwealth of Australia. (6) Order (4) is to apply until the expiration of 28 days from the date of these orders. Catchwords: CRIME – procedure – interlocutory appeal – application for permanent stay – applicant unfit to stand trial – special hearing directed – charges related to historical sexual misconduct – refusal by trial judge to grant permanent stay – reliance on applicant's mental and physical condition – whether judge erred in not finding that special hearing would be an affront to common humanity – risk that hearing would exacerbate applicant's mental and physical conditions – no forensic disadvantage identified Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 Criminal Appeal Act 1912 (NSW), s 5F Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), Pt 4, Div 3, ss 36, 48, 56 Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21 Cases Cited: Arrivoli v R [2017] NSWDC 112 Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48 GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 House v The King (1936) 55 CLR 499; [1936] HCA 40 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Kitchingman v R [2023] NSWCCA 4 Koschier v R [2024] NSWCCA 24 Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 Queen v Edwards [2009] HCA 20; 83 ALJR 717 R v Hakim (1989) 41 A Crim R 372 R v Murray [2011] NSWDC 258 R v O'Neill (No 2) [2023] NSWDC 572 R v WRC [2003] NSWCCA 394; (2003) 59 NSWLR 273 Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 TS v R [2014] NSWCCA 174 Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 Category: Principal judgment Parties: RC (Applicant) Director of Public Prosecutions (NSW) (Respondent) Representation: Counsel: S Buchen SC / R Pettit (Applicant) B Hatfield SC / J Mehta (Respondent) Solicitors: Murphy's Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2022/181592 Publication restriction: As to the applicant, see order (4). As to the complainants, there is a statutory prohibition from disclosing their identities under the Children (Criminal Proceedings) Act 1987 (NSW), s 15A. Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 27 May 2024 Before: McGuire SC DCJ File Number(s): 2022/181592 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, RC, has been charged with 39 counts of sexual misconduct with six complainants between the ages of 10 to 16 from 1975 to 1983. The complainants were all under his care in his capacity as a swimming instructor. The applicant now suffers from a number of significant physical and mental conditions, including terminal cancer and depression. He was at risk of suicide if the hearing proceeded. On 4 December 2023, the District Court held the applicant to be unfit for trial on account of his compromised ability to follow and comprehend the general course of proceedings. The Director of Public Prosecutions advised that a special hearing would be held to deal with the charges against the applicant. On 1 May 2024, the applicant sought a permanent stay of the special hearing on the sole ground that to proceed against him would offend common humanity. The primary judge (McGuire SC DCJ) dismissed the application. The applicant sought leave to appeal from that judgment, with the issues for determination being whether: (i) the primary judge applied the "common humanity" test; (ii) the primary judge erred in considering the effect of a possible order excusing the applicant from attending, and (iii) there should be a non-publication order as to the identity of the applicant. The Court held, granting leave to appeal (in part) but dismissing the appeal: As to (i) (common humanity test) (1) A stay of proceedings is only appropriate in a rare case, as it is an exceptional intervention in the criminal law process: [28]. R v WRC (2003) 59 NSWLR 273; [2003] NSWCCA 394 applied. (2) Whether to proceed with a special hearing required an evaluative judgment with no precise criteria as a guide. The primary judge did not fail to apply the test in Subramaniam, namely whether to proceed "would be out of accord with common humanity", which required him to balance the applicant's health concerns against the public interests in addressing the complaints: [25], [30]. Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116; Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 applied. R v Hakim (1989) 41 A Crim R 372 distinguished. (3) The judge's reference to a "mere risk" having been established reflected his conclusion that a "real risk with grave consequences" had not. A mere risk of unacceptable injustice or unfairness is insufficient to warrant a permanent stay: [31]-[33]. Subramaniam v The Queen; The Queen v Edwards [2009] HCA 20; 83 ALJR 717; TS v R [2014] NSWCCA 174 applied. As to (ii) (possible excusing from attendance) (4) The evidence of the medical experts did not establish a serious risk of suicide should a special hearing, with appropriate safeguards in place, go ahead: [35]-[36], [45]-[49]. (5) The stress caused by the hearing and its length related to the seriousness and extensiveness of the applicant's alleged misconduct and would be relevant to the exercise of the power to excuse the applicant from attending, if he wished not to. It provided limited support for the staying of the special hearing: [48]. (6) While the time for considering such an order had not yet arisen, there was no error in the judge having regard to the possibility of steps to ameliorate the effects of the proceedings on the health of the applicant: [40]-[42]. As to (iii) (non-publication order) (7) Although it was unclear whether there had been publicity surrounding the arrest and charging of the applicant, and as to the steps to be taken to mitigate the risk of suicide if the applicant knew the special hearing was to proceed, it was necessary to order non-publication of his identity for a sufficient period to allow the risk to be addressed: [52]-[57], [62]-[64]. JUDGMENT 1. THE COURT: The applicant for leave to appeal stands charged on an indictment containing 39 counts of sexual misconduct with girls in his care as a swimming teacher. The complainants ranged in age from 10 to 16 years at the time of the offending. The offending took place between 1975 and 1983. The applicant now suffers from a number of physical and mental conditions. 2. On 4 December 2023, the District Court (Hopkins DCJ) found that he was unfit to be tried, primarily, it seems, by reason of a significantly compromised ability to "follow the course of the proceedings so as to understand what is going on in a general sense", for the purposes of s 36(1)(e) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("2020 Act"). The effect of that finding was that the applicant is to be dealt with under Pt 4, Div 3 of the 2020 Act, by way of a "special hearing": s 48(1). 3. Four months after that order was made, on 1 May 2024, the applicant sought a permanent stay of the special hearing. On 27 May, following a six-day hearing before Judge McGuire SC (the primary judge), the application was dismissed. The applicant seeks leave to appeal from that judgment. 4. The special hearing was listed to commence on the next working day following the hearing of this application for appeal, namely 11 June 2024. At the conclusion of the hearing on 7 June, the Court made orders dismissing the appeal and granting a limited non-publication order in relation to the identity of the applicant. It reserved its reasons: these are the Court's reasons for the orders made on 7 June. Procedural background 1. On 23 April 2024, the applicant's lawyers advised that there would be no application for a permanent stay of the special hearing, absent a change in circumstances. A week later, on 1 May 2024, the applicant sought a permanent stay of proceedings, apparently on the basis of a progress report prepared by a forensic psychologist, Stephen J Woods dated 28 April 2024. (Dr Woods had been the applicant's treating psychologist since 2022. [1] ) On the day following delivery of judgment refusing the stay, namely 28 May 2024, the applicant filed a notice in this Court, seeking leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). A refusal of an application for a permanent stay of criminal proceedings is an "interlocutory judgment or order", from which an appeal may be brought with leave of this Court. The certification accompanying the notice of appeal stated that the appeal did not raise any issue in which the Court would need to consider material not before the trial court. 2. There were two grounds identified, each with two parts. They read as follows: "1(a) The learned judge erred by failing to apply the test stated in Subramaniam v The Queen [2] … at [31] and [35]. 1(b) The learned judge erred by refusing the application for a permanent stay on the basis that the evidence merely established a 'risk' that the special hearing could result in an abuse of process. 2(a) The trial judge erred by having regard to the purported moderating and ameliorative effects of an order made pursuant to s 56(8) of the [2020 Act]. 2(b) The trial judge erred by failing to have regard to evidence concerning the likely course of the special hearing, were the permanent stay refused, and its probable impact on the applicant." 1. This case is unusual in two respects. First, the finding of unfitness did not rely upon an inability to understand the offences the subject of the proceedings, or to plead to the charges, or the right to challenge jurors, or to understand the nature of the proceedings, but merely a difficulty in following the course of the proceedings, even to the limited extent of understanding what was going on "in a general sense". 2. The second unusual characteristic is that the only basis for the application for a stay is that it "would be out of accord with common humanity" to allow the special hearing to proceed. By contrast with other applications for stays in respect of historic offending (that is, offending which is alleged to have occurred some years before charges were laid) there is no claim of prejudice due to the lapse of time: there was no allegation of forensic prejudice. 3. The Director of Public Prosecutions opposed the grant of leave to appeal and, if leave be granted, the appeal, on the basis that no error had been demonstrated in the reasoning or findings of the primary judge. That submission will need to be assessed against the grounds identified above. The High Court held in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, [3] a case involving civil proceedings, that an appeal from a refusal of a permanent stay on the grounds that the proceedings would constitute an abuse of process did not involve a discretionary determination to be conducted on the constrained approach explained in House v The King. [4] 4. In Koschier v R, [5] this Court accepted that the approach adopted in GLJ should apply to criminal proceedings involving an appeal from the refusal or grant of a stay. However, as Koschier indicated, there may be a live issue in these cases as to whether there should be a grant of leave to appeal, having regard to the grounds on which an appeal is sought to be brought. One reason why the question of leave should be treated as material is that such applications tend to disrupt and delay the criminal process. That may be thought a limited concern in circumstances where there has been an extensive lapse of time between the conduct the subject of the charges and the laying of the charges, but there are other aspects of delay once proceedings are on foot which should not be disregarded. 5. It does not follow that principles applied in considering an application for leave to appeal in civil cases will necessarily determine the correct approach to an application under s 5F(3) of the Criminal Appeal Act to appeal from an interlocutory judgment in criminal proceedings. Nor do the principles concerning an extension of time to review a stale conviction, or to revisit an error in sentencing, as discussed in Kentwell v The Queen, [6] necessarily apply. Nevertheless, it is necessary for the applicant to demonstrate at least an arguable error on the part of the primary judge, or at least an arguable basis for believing that the evaluative judgment as to what might constitute an abuse of process has miscarried on the facts. [7] There is no need to expand upon the nature of the test so expressed, though it may well understate the burden on the applicant. Judgment below 1. The issue raised by the applicant in relation to which it is said the primary judge erred was explained in the judgment at [156] in the following terms: "the only basis upon which the stay of the special hearing is sought is the common humanity ground". As to that, the primary judge noted: "158 The Crown fairly acknowledged that the applicant was in poor physical and mental health and that the court is required to consider the combined circumstances of the applicant's physical health, mental infirmities and the opinions relating to the effect that proceeding with the special hearing might have on the applicant's health and suicidal ideation." 1. The primary judge summarised the evidence, and particularly the medical evidence, in some detail. Importantly, as will become clear, he addressed the evidence of the applicant's treating (forensic) psychologist, Stephen J Woods in detail at [70]-[82] and that of a psychiatrist, Dr Henderson at [83]-[105]. For present purposes it suffices to record the summaries of that material. The primary judge also provided a lengthy summary of the evidence of Dr Rosenfeld, a geriatrician who had neither seen nor spoken to the applicant: at [106]-[122]. 2. The most serious of the applicant's physical conditions was a "progressive and untreatable cancer" that was reported by Dr Diamond in September 2023 to have reduced his life expectancy "to about a 20% chance of living for five years": at [161]. Another medical practitioner (a cardiologist) who was not called, but whose evidence was supported by Dr Rosenfeld, [8] suggested that he had a life expectancy of one year, though the meaning of "life expectancy" in this context was not helpfully addressed, except by a concession that "doctors are always wrong when we give life expectancies". [9] He also has mild dementia, which is probably still at an early stage: at [162]. 3. The primary judge recognised that the applicant had attempted suicide on one occasion by carbon monoxide poisoning. He described the applicant's "stated intention to commit suicide" as "highly concerning": at [163]. He continued: "165 The applicant's suicidal ideation has been reported by him to numerous doctors as being directly related to shame and humiliation associated with these allegations. As Dr Rosenfeld accepted, the applicant will continue to experience stress even if a stay of the special hearing is ordered, because he understands sufficiently enough about the process to know that a stay will not result in a finalisation of the allegations and he knows that they will remain unresolved. It appears that the applicant has expressed a sufficient understanding of his present legal predicament to understand the consequences of a stay being granted and, conversely the consequences of a stay not being granted. 166 In addition he has expressed sufficient cognitive functioning to express to his medical practitioners the shame, humiliation and embarrassment that he will feel if the matter proceeds because of the public airing of the allegations. Dr Rosenfeld accepted the proposition that that established that the accused had sufficient cognitive functioning to understand the inverse proposition, namely he would understand that if a non-publication order was made there would be less reason for him to feel shame and embarrassment." (It will be necessary to return to the question of a non-publication order.) 1. There is no doubt that, on the evidence, the applicant was physically capable of looking after himself in his domestic surroundings, going shopping by himself, driving a car and carrying shopping bags, and putting away the shopping on arrival home. Police conducted a video-recorded bail compliance visit to his home in circumstances where the applicant carried out tasks in the kitchen, and carried on a conversation with them which was both structured and coherent. There was also video evidence of the applicant taking out rubbish bins, reversing his car out of the driveway, visiting the local police station having parked his car, and returning home. There was also video evidence of him negotiating stairs in the police station. The judge took this evidence into account at [167]-[168]. 2. The judge considered the stressors which, on the medical evidence, could attend the conduct of a special hearing. He had regard to the possibility that the applicant not be required to attend court and the possibility of a non-publication order. He stated: "170 The court must be satisfied that a continuation of the proceedings would involve unacceptable injustice or unfairness or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process; the mere risk of unacceptable injustice or unfairness is insufficient: R v Edwards at [23]; TS v R [2014] NSWCCA 174 per Leeming JA at [1]. 171 Although I accept that on the evidence there is a possibility that continuing the special hearing could result in an abuse of process, I am not satisfied that the evidence establishes that it would do so. Here the evidence is insufficient in that it only establishes a mere risk. 172 In the present circumstances the case is not so extreme or exceptional as to justify the granting of a permanent stay. Here the applicant's physical and mental conditions, even accepting a deterioration in those conditions, do not result in it being out of accord with common humanity to allow the matter to proceed by way of special hearing. I do not find that the common humanity basis for the application operates in favour of granting the stay. The risks to the applicant's health are not such that a continuation of the proceedings amounts to an abuse of process." Grounds of proposed appeal Grounds 1(a) and (b) 1. Ground 1(a) referred to the test stated by the High Court in Subramaniam at [31] and [35]. It is necessary, however, to read these passages in context. 2. The first issue in Subramaniam was whether the trial judge had erred in rejecting an application for a stay. The trial judge had accepted that "the appellant had 'an adjustment disorder with anxiety and depressive features' which developed to the point that after the first trial she was talking about suicide". [10] The High Court stated that it would have been better had the trial judge discussed the relevant principles, but was satisfied that he had had regard to the whole of the medical evidence. 3. As to the passage at [31], the High Court commenced by observing that an important purpose of the predecessor to the 2020 Act [11] was "an ameliorative one, to give a person unfit to be tried in an orthodox way, an opportunity of being acquitted in a special hearing so that any possibility of legal proceedings against the accused of any kind may be brought to an end". [12] A second purpose was to ensure that "a special hearing actually take place, and that complainants be afforded an opportunity to see that a form of justice, as necessarily imperfect as it may be in the circumstances, has been done". The nature of the imperfection was demonstrated by the fact that "an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings". 4. The reasons in Subramaniam continued: "29 No error has been shown: The main difficulty for the appellant is that the Act assumes as the basis for its application to her, the very matter upon which she would seek to rely to escape its application, her current mental infirmity and all that it involves. 30 The appellant relied not only upon her current mental condition, but also upon the potential for its exacerbation by reason of the special hearing. This, it was said, would be so oppressive to her as to justify a permanent stay. 31 A relevant test that has been applied and which we would adopt, is whether, in light of the appellant's deteriorating condition, it 'would be out of accord with common humanity' to have allowed the matter, which was, it must be emphasized, a special hearing, to proceed. [13] " 1. The test identified at [31] formed the basis for the allegation of error in ground 1(a). The High Court's reasons continued: "33 The possibility of the continuing deterioration of the appellant's mental health and any potential that the trial might have for its aggravation did not therefore, in the circumstances of this case, provide sufficient reason for the grant of a permanent stay." 1. The second passage relied on by the applicant followed from that conclusion: "35 The ground of appeal relating to the stay should therefore be rejected. This is not to say that notwithstanding the manifest purposes of the Act, there may not still be cases of mental infirmity calling for the grant of a stay even of the special hearing for which it provides although instances of them are likely to be rare. This is so for two reasons: the Act does not, expressly or by implication, forbid their application; and, common humanity would argue in favour of a stay if the risk were a real one, and the likely exacerbation grave." [Footnote omitted.] 1. Ground 1(a) did not assert that the primary judge had failed to identify the correct approach, nor did the judge so fail. He stated the applicable legal principles at [127]-[138] in terms with which the applicant understandably found no error. He summarised Subramaniam at [135]-[138] in accordance with the understanding set out above. The error was said to arise in the application of that "test". 2. While the High Court at [31] described a "relevant test" (namely, whether to proceed by way of a special hearing "would be out of accord with common humanity") that requires an evaluative judgment with no precise criteria to guide it, as the primary judge noted at [140]. [14] The primary judge had regard to examples of the application of the test in other circumstances, which no doubt assisted in articulating the concerns about the health of the applicant, which were to be balanced against the importance of delivering a form of justice to the complainants, and so as to satisfy the community's need to see that allegations of serious offending are not too readily disregarded out of tenderness for the health of the alleged perpetrator. As acknowledged in Subramaniam at [33], quoting Walton v Gardiner, [15] the weighing process must address: "… the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice." 1. In this Court, counsel for the applicant placed weight on the decision in R v Hakim, [16] being the case in which it seems the reference to "common humanity" was first used. Hakim involved a challenge by the Director of Public Prosecutions to a stay ordered by Lee J of a trial on a charge of criminal conspiracy. It was the trial judge who expressed the view that, having regard to the deteriorating physical condition of Mr Hakim it would be "out of accord with common humanity when the fact is also that he has already to some extent suffered prejudice in regard to his memory from the passage of time" to allow the prosecution to proceed. [17] On appeal, and having regard to the findings of fact made by Lee J, Kirby P accepted that "it would offend common humanity" to require Mr Hakim to stand trial on the charge of conspiracy. 2. The medical circumstances of Mr Hakim do not provide guidance as to the correct test. The evidence was not addressed in detail in the Court of Criminal Appeal, Kirby P being satisfied that it was "open to Lee J to stay the proceedings". Further, the question arose as to whether a criminal trial would have been an abuse of process; the case did not concern a special hearing under the current statutory scheme. Hakim was an example of circumstances where to proceed with a criminal trial of a person who was not physically fit to stand trial would constitute an abuse of the trial process. 3. When R v WRC came before this Court in 2003, the test of "an affront to 'common humanity' to require [an accused] to face trial" was referred to by Spigelman CJ, where the question was whether the trial judge had acted appropriately in exercising a common law power to stay proceedings for unfitness to be tried, when statute provided for a jury to determine whether there should be a trial. [18] What was significant in WRC, as a matter of principle, were the repeated references to a stay of proceedings only being appropriate in "a rare case", [19] being "a wholly exceptional intervention in the processes of the criminal law" [20] and "instances of them are likely to be rare". [21] 4. At the hearing below the applicant relied on four decisions of District Court judges granting permanent stays because of the parlous state of health of the accused defendants. [22] The trial judge distinguished the cases on the facts and, understandably, no challenge was made to those passages in the judgment. 5. The proposition that the judge failed to apply the test stated at [31] of Subramaniam was not made good. The passage in Subramaniam at [35] did not state a "test", but merely acknowledged that although the test (stated at [31]) was not satisfied in that case, it might be in other cases. Ground 1(a) was not made out. 6. The meaning of ground 1(b) was not entirely clear. Counsel for the applicant accepted that there were two key questions, namely (a) is the risk of deterioration real and (b) is the likely exacerbation grave? He submitted that the primary judge did not address the relevant evidence. However, clearly the primary judge did address the evidence, in detail, and, as the Director submitted, the reference to establishment of a "mere risk" was a conclusion that a "real risk with grave consequences" had not been established. Accordingly, the reference to "risk" did not demonstrate error, but rather the correct application of principle. Subramaniam at [35] did not suggest that a "mere risk" should result in a stay, but stated that "if the risk were a real one, and the likely exacerbation grave", that would "argue in favour of a stay". 7. The primary judge applied the observation of Leeming JA in TS v R, [23] that the court "must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process". As Leeming JA further pointed out, the emphasis was that of the High Court in The Queen v Edwards, [24] demonstrating that a mere "risk" of unacceptable injustice or unfairness would be insufficient. The applicant submitted (in effect) that the primary judge was wrong to translate the principle stated in Edwards, a case dealing with forensic disadvantage, to the present case, involving no forensic disadvantage, but a claim of inhumanity. That distinction should not be accepted: inhumanity is readily seen as an example of unjustifiable oppression and thus abuse of process. That something more than a mere risk was required may be understood from the nature of the balancing exercise and the need to establish that the determination of charges of serious criminal activity cannot be allowed to proceed. 8. In its terms, ground 1(b) was not made good. To the extent that it implied, by use of the word "merely", that there had been a failure to assess all of the relevant evidence against the relevant legal test, it was factually wrong. 9. Although the matters formulated as grounds 1(a) and (b) must be rejected, the applicant's written and oral submissions in effect invited this Court to form a different view on the merits of the claim for a stay. However, in doing so, the submissions required the Court to take a significantly different view of the medical experts who had given evidence before the primary judge, primarily by reference to their evidence in chief: there was limited reference to their cross-examination. 10. Although reliance was placed upon the applicant's physical condition, the main focus was upon his mental condition and the risk of him committing suicide. The primary judge accepted that such a risk existed and that he had made two attempts at suicide. A possible attempt to overdose on prescription drugs was unlikely to be repeated once controls had been placed on the availability of those drugs within the home. The second involved carbon monoxide poisoning, as to which no details were explained in the hearing of the appeal. The realistic likelihood of repetition was not explored. However, the acceptance by the trial judge of the evidence of Dr Woods, set out below at [46], supported the submission of the Director that the risks were exaggerated. There can be little doubt that Dr Woods had the greatest opportunity of any of the medical witnesses to assess that particular risk. The judge's understanding of his assessment should be accepted, with the proper inference that it is based upon the likely shame and humiliation resulting from public exposure of the evidence against the applicant. That material does not warrant a stay in the application of the balancing exercise identified in, for example, Walton v Gardiner. 11. As to the reduced life expectancy based on the assessment of his untreatable pancreatic cancer, it was by no means clear that the conduct of a special hearing, with appropriate safeguards for his health, would result in a deterioration of his condition beyond that which was otherwise to be expected, at such a level of gravity as to warrant the grant of a stay. 12. Leave should be granted with respect to grounds 1(a) and 1(b), but the challenge rejected. 13. However, implicit in the applicant's submissions, both in writing and orally, was a request to re-assess, the appeal being by way of rehearing, the judge's findings with respect to the risk of suicide; this exercise is relevant both in relation to the substantive result and the application for a non-publication order with respect to the identification of the applicant. It will be addressed after considering grounds 2(a) and (b). Grounds 2(a) and (b) 1. Ground 2(a) asserted error on the part of the primary judge in "having regard to" what were described as "the purported moderating and ameliorative effects of an order made pursuant to s 56(8) of the [2020 Act]". 2. Section 56 of the 2020 Act provides for the procedure to be adopted at special hearings. It requires that a special hearing be conducted "as nearly as possible" as if it were a criminal trial, but that the court may "modify court processes to facilitate the effective participation by the defendant in the special hearing": s 56(1), (2). Section 56(8) confers a power on the court to "permit the defendant not to appear, or exclude the defendant from appearing" if thought appropriate and if the defendant or his or her legal representative agrees. As the primary judge correctly noted, the time for considering the application of that provision had not yet arisen: at [173]. However, he did take the availability of that power into account. 3. The submission that he was in error in doing so is puzzling; the contrary was accepted at the hearing below. [25] Indeed, it was inconsistent with Subramaniam. As the High Court noted in identifying the relevant test at [31], an assessment as to whether a proceeding would be out of accord with common humanity, "it must be emphasised", was to be undertaken in the context of a special hearing. The High Court had already identified an important purpose of the Act as "ameliorative", given the unfitness of the person to be tried in an orthodox way. To disregard the nature of the special hearing and the manner in which the orthodox principles governing a criminal trial might be ameliorated for the benefit of the accused would almost certainly demonstrate error. Particularly would that be so where it was the very fact of having to attend a hearing to answer charges which constituted the sole plausible basis of the application for a permanent stay. As Bell CJ noted in Koschier at [52(viii)]: "One example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences': Barton v The Queen. [26] " 1. The applicant's written submissions relied on a twofold proposition that the applicant would not consent to being absent, and should not be invited to do so. Neither proposition demonstrates error on the part of the primary judge in taking into account the power to ameliorate the primary basis on which the application was brought. Most accused would wish to avoid a criminal trial revealing detailed allegations of their sexual misconduct; however, there is no basis for interfering with the due process of justice because the accused has refused the amelioration of stress by attendance, or because non-attendance would not ameliorate the stress. "Common humanity" does not require such a course. The unpleasant consequences for the applicant commenced with his arrest and the laying of charges. 2. Ground 2(a) does not warrant a grant of leave. 3. Apparently inconsistently with ground 2(a), ground 2(b) complained that the primary judge erred by failing to have regard to the "likely course of the special hearing" and its "probable impact on the applicant". 4. The ground was dealt with, albeit briefly, in written submissions as intending to state that the judge failed to consider "his possible, or likely, involuntary detention under the Mental Health Act 2007" by reason of his suicidal ideation. In that context, it was said that regard should be had to the likely length of a special hearing and its likely effects on his physical health, including his cancer and the history of cardiac arrests, although the last ischaemic event occurred in 2020 and there was no evidence from a cardiologist as to current risks. 5. If the medical practitioners considered that suicide was so substantial a risk that they would schedule the applicant if the special hearing went ahead, that result would be a matter for medical judgment. The evidence relied on was that of Dr Woods (who is not a psychiatrist and has no power to schedule the applicant) and Dr Henderson (who is a psychiatrist), to similar effect. But, as the Director pointed out, it was wrong to suggest that the primary judge did not advert to that evidence; rather, with respect to Dr Woods, he stated: "78 On the issue of the effects on the applicant if he was scheduled or otherwise put into care, he was of the opinion that if detained in a mental health or correctional centre or any other place where he was detained like an aged care facility, his mental health would further decline. 79 During cross-examination Professor Woods stated that he did not consider it necessary to schedule the applicant, even following his disclosure of his plans to commit suicide on ANZAC Day, because the professor was comfortable that the applicant was not going to act on his stated intention. Professor Woods also accepted that he was not so concerned about any real attempt to commit suicide that he felt it necessary to relay any suicidal concerns to other health carers or medical professionals treating the applicant. In his evidence the professor stated that he understood from his conversations with the applicant that the applicant wanted to bury his head in the sand and did not want to be involved in any of the legal proceedings. The professor acknowledged that the applicant currently had no clear stated plan to commit suicide, but rather expressed a vague intention to commit suicide if his stay application was unsuccessful." 1. With respect Dr Henderson (who had had a 90-minute AVL consultation with the applicant), the judge stated: "94 In his oral evidence Dr Henderson stated that if the applicant's legal circumstances did not exist, that he did not believe that the applicant was a significant suicide risk. He described the applicant's response to his legal predicament as extreme and concerning. Dr Henderson added that in his opinion the progression of the court matter was the critical factor to determine the applicant's risk of suicide, rather than the applicant's attendance. Dr Henderson believes that if the applicant was required to attend court in person that that would add an additional layer of humiliation and confrontation which the applicant would find utterly inconceivable and unacceptable and that would add to his suicide determination." 1. Both the stress caused by the hearing, and the anticipated length of the hearing, are functions of the seriousness and extensiveness of the alleged criminal conduct; they will be relevant to the exercise of the power under s 56(8) to excuse the applicant from attendance. These are circumstances to be dealt with in the course of the special hearing and provide only limited support for the view that the special hearing should not proceed. As the evidence identified by the primary judge did not support the underlying premise of the applicant's submission as to a likelihood of a suicide attempt, subject to reconsideration of that material undertaken below, the ground falls away. 2. There was insufficient substance in ground 2(b) to warrant a grant of leave to appeal. Re-assessment of suicide risk 1. The primary source of the concern as to the risk of suicide was Dr Henderson, who had access to other medical reports, but whose knowledge of the applicant was confined to a 90-minute AVL consultation. He had questioned the applicant closely about his history of attempted suicide and his intentions with respect to suicide. He also administered a self-assessment test. His opinions were, as he accepted, dependent on the applicant's self-reporting, although, somewhat inconsistently, he thought that if the applicant were scheduled, he would lie to obtain his release. In respect of the ability of the hospital to determine a false report retracting suggestions of suicidal ideation, Dr Henderson stated: "What he's expressed formerly in terms of his intention, his plan and it will be predictable and anticipated by his treating team in hospital, that he would naturally retract his expression of suicide…. So they would keep him in hospital for a longer period of time, … development of rapport, a trusting relationship, attempting to persuade him not to commit suicide, potentially adjust to a circumstance of his court predicament… he would eventually be discharged if he repeatedly states he's not suicidal, he's feeling much better and then the risk could potentially be that he would commit suicide upon discharge." [27] 1. The judge pressed Dr Henderson with respect to the self-reporting assessment of his suicidal ideation and the cause of his expressed intentions. Thus, with respect to the drug overdose, the primary judge asked, "did you allow for the possibility that no stockpile in fact ever existed, that it couldn't be found because it wasn't ever there?". [28] 2. Dr Henderson accepted that his symptoms were entirely self-reported and accepted that "there could be an exaggeration of self-report of symptoms of depression, anxiety and stress in this overwhelming circumstance", namely facing serious child sexual assault allegations. [29] His suggestion that the hospital staff, knowing the basis of the risk of suicide, namely the holding of a special hearing, would accept his assurances of "feeling much better", whilst that hearing was on-going, seemed implausible. It carried little weight. 3. Further, precisely why the risk was focused upon the commencement of the special hearing was unclear. The court proceedings had been on foot for at least two years, including the charging process. There had been a fitness hearing and findings. However, Dr Henderson was of the view that the applicant did not fully appreciate the consequence of the finding that he was unfit. [30] Whether Dr Henderson asked him on 8 May 2024 about the advice his lawyers were effectively directed by Hopkins DCJ to give him while he was present at the fitness hearing, was unclear. 4. Dr Henderson thought that the cause of the risk was "the humiliation aspect". [31] The following exchange took place with the primary judge: [32] "Q. … do I take it that the reference to humiliation and shame is associated with the public airing of the allegations against him, independent of any finding as to the facts being proven? A. I don't believe it's about the facts being proven in [RC's] mind. It's merely the scrutiny and the accusations hanging over him, that he finds intolerable and devasting. Q. In your opinion, is some of the shame or embarrassment associated with what might be considered to be the public airing of the allegations? A. It could be, and the humiliation could relate to the public airing and perhaps the media and the exposure. But I feel a lot [RC's] distress is intrapsychic and it's about him and his own self-esteem, his own sense of worth and person …. I think it's more a private matter rather than about the public scrutiny or the worries about what people will think of him. Q. So the fact that the allegations, if there is to be a permanent stay, the fact that the allegations remain extant and remain unresolved, how does that factor in what you perceive to be the ongoing threat of suicidal ideation? A. I don't think his cognitive functioning is so sort of nuanced that he would kind of hold onto that as, 'look at the accusations that remain hanging and remain over my head, which I have to, you know somehow resolve'. … he's so compromised that he will just see it and talk it away and label it as, 'well it was dismissed because', you know he'd made up a narrative …." 1. There was a degree of tension between the suggestion that the applicant is fixated on his success and image as an elite swimming coach and the inference that his suicidal ideation is based on the humiliation and embarrassment caused by the allegations and, on the other hand, the opinion that it would make no difference to him if the hearings were not in public and he did not have to attend. Similarly, there is a tension between acceptance that he currently suffers from suicidal ideation, which he may well act on, and the fact that he has taken no effective steps to act on it in the last two years, and is allowed to remain by himself during the day when his wife is at work, where the home carers who provide intermittent assistance have indicated no concerns about his conduct or behaviour and the situation that there could be, as must have been expected all along, a hearing to resolve the truth of the allegations. 2. Dr Henderson accepted that it had "crossed my mind" that "the basis of that potential suicide plan [was] feelings of shame about being publicly prosecuted in respect of child sexual assault offences". He also considered that the cancer diagnosis was a contributing factor, although it had been diagnosed ten years ago. [33] Dr Henderson gave somewhat equivocal answers to questions as to whether he had considered scheduling the applicant at the time he obtained an account of his intention to take an overdose of drugs. [34] Although challenged as to the reliability of the applicant's self-reporting, his evidence appeared to make no significant allowance for that possibility. 3. Finally, although that evidence was given in mid-May, on the basis of reports prepared (in the case of Dr Henderson) in early May, the psychiatric experts and treating psychologist took no steps, either in anticipation of or immediately upon the refusal of the stay to address the situation of the applicant. There is no evidence as to why steps were not taken, but it follows that the ability of this Court to judge the seriousness of the threats at a critical time is unexplored. The exploration of these issues in the evidence is insufficient to persuade this Court that the risks will not be appropriately addressed by medical or police intervention, as proposed by Dr Henderson, if they are thought to warrant such action. Non-publication order 1. On 6 June 2024 (the day before the hearing in this Court) the applicant provided a notice of motion seeking an order under the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibiting the publication of any information tending to reveal the identity of the applicant. The basis of the order was to be found in an affidavit by the applicant's solicitor, Mr Bryan Wrench of 6 June 2024. 2. Mr Wrench noted that the special hearing was listed for 11 June 2024 in the District Court, with an estimate of eight weeks. Although there was no working day between the day on which the appeal and the notice of motion were to be heard and the listing of the special hearing, there was no evidence, or submission, indicating that there had been an application to adjourn the special hearing. It emerged that the applicant had not personally been informed of the refusal of his stay application by the District Court. His solicitor stated: "15 The applicant is currently unaware that his permanent stay application was dismissed. That decision was made to guard against materialisation of the risks addressed above before the application for leave to appeal in this Court is determined. 16 I am concerned that if the applicant is made aware of the dismissal of his stay application from reporting in the media, measures that may have to be taken in light of those risks may be frustrated or undermined." 1. The last statement refers to a concern that medical evidence that he might commit suicide on being advised that the hearing would go ahead required that steps be taken to arrange for his scheduling prior to him being so informed. 2. The assessment of the suicide risk has been addressed above. If Dr Henderson's evidence were accepted it would be necessary to have a plan capable of immediate activation, in the event the appeal was unsuccessful (as it has been). In the absence of evidence of a plan, it was unclear for how long a non-publication order would be required. 3. The final consideration was that, again in the absence of clear evidence, it was unclear whether there had been publicity surrounding the arrest and charging of the applicant. It was possible that both his name and the nature of the charges were already in the public arena, although the stage now reached in the proceedings may not be publicly known. 4. This consideration would need to be addressed if there were to be a continuation of the order beyond the period specified. The importance of the principle of open justice and the inability of the courts to make non-publication orders unless necessary for one of the reasons specified in s 8 of the Act, militate against an order being made where to do so would be futile, because of prior public disclosures. 5. Taking these matters into account, a non-publication order as to the identity of the applicant was made, but for a limited period: the Court directed that such an order should operate for 28 days from 7 June 2024. Orders 1. Having formed a clear view as to the outcome of this application, the Court made the following orders upon the conclusion of the hearing, so as not to impede the continuation of proceedings which were listed to commence in the District Court on 11 June 2024: 1. Grant leave to appeal on grounds 1(a) and (b). 2. Refuse leave to appeal on grounds (2)(a) and (b). 3. Dismiss the appeal from the judgment in the District Court refusing a permanent stay of the special hearing. 4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the ground that the order is necessary to protect the safety of the applicant pursuant to s 8(1)(c) of the Act, prohibit the publication of any information tending to reveal the identity of the applicant in connection with the proceedings in this Court. 5. Order (4) is to apply throughout the Commonwealth of Australia. 6. Order (4) is to apply until the expiration of 28 days from the date of these orders. ********** Endnotes 1. DC Tcpt, 14/05/24, p 20(18). 2. [2004] HCA 51; 79 ALJR 116. 3. [2023] HCA 32; 97 ALJR 857. 4. (1936) 55 CLR 499 at 504-505; [1936] HCA 40. 5. [2024] NSWCCA 24 at [33]-[34] (Bell CJ, Harrison CJ at CL and Chen J agreeing); Moubarak bht Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [71] Bell P (Leeming JA and Emmett AJA agreeing). 6. (2014) 252 CLR 601; [2014] HCA 37. 7. Koshier at [47]-[51]. 8. Tcpt, 21/05/24, p 185(10)-(22). 9. Tcpt, p 186(35) (Dr Rosenfeld). 10. Subramaniam at [32]. 11. Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 21. 12. Subramaniam at [28]. 13. Hakim (1989) 41 A Crim R 372 at 377; R v WRC [2003] NSWCCA 394; (2003) 59 NSWLR 273 at 281 [51]- [52]. (Footnote in original.) 14. Kitchingman v R [2023] NSWCCA 4 at [31]. 15. (1993) 177 CLR 378 at 396; [1993] HCA 77. 16. (1989) 41 A Crim R 372 (Kirby P, Gleeson CJ and Clarke JA agreeing). 17. Hakim at 377. 18. See fn 13 above, at [62]. 19. Hakim at 377. 20. WRC at [55]. 21. Subramaniam at [35]. 22. R v Murray [2011] NSWDC 258; Arrivoli v R [2017] NSWDC 112; R v Crawford (unrep, 1/11/2018); R v O'Neill (No 2) [2023] NSWDC 572. 23. [2014] NSWCCA 174 at [1] (Adams J agreeing, and Bellew J writing to similar effect at [61]-[64]). 24. [2009] HCA 20; 83 ALJR 717 at [23]. 25. Second supplementary submissions for accused, 22 May 2024, par 39. 26. (1980) 147 CLR 75 at 111 (Wilson J); [1980] HCA 48. 27. Tcpt, 15/05/24, p 109. 28. Tcpt, 15/05/24, p 92(8). 29. Tcpt, p 96(30). 30. Tcpt, p 110(40). 31. Tcpt, p 110(23). 32. Tcpt, p 116(40). 33. Tcpt, p 92(18)-(32). 34. Tcpt, p 95. Amendments 13 June 2024 - Anonymise name in quote at [54] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 June 2024