R v FORREST, Kerry [2013] NSWSC 527

Supreme Court New South Wales

Medium Neutral Citation: R v FORREST, Kerry [2013] NSWSC 527 Hearing dates: Monday 6 May 2013 Decision date: 09 May 2013 Jurisdiction: Common Law - Criminal Before: Hidden J Decision: Application for permanent stay refused Catchwords: CRIMINAL LAW - application for permanent stay of trial for murder - serious illness of accused - poor prognosis - effect of illness on her mental state - policy considerations - whether fair trial could be had Legislation Cited: - Mental Health (Forensic Provisions) Act 1990 - Crimes (Sentencing Procedure) Act 1999 Cases Cited: - Director of Public Prosecutions v Hakim (Lee J, unreported, 16 May 1988) - Director of Public Prosecutions v Hakim (1989) 41 A Crim R 371 (Court of Appeal) - Jago v District Court of New South Wales & Ors (1989) 168 CLR 23 - R v Littler [2001] NSWCCA 173, 120 A Crim R 512 - R v WRC [2003] NSWCCA 394, 59 NSWLR 273 - Agoston v R [2008] NSWCCA 116 Category: Interlocutory applications Parties: Regina (Crown) Representation: Counsel: C Patrick (Crown) S Grant (Accused) Solicitors: S Kavanagh - Solicitor for Public Prosecutions (Crown) SE O'Connor - Legal Aid Commission (accused) File Number(s): 2011/49657

Judgment 1HIS HONOUR: Before me is an application by the accused, Kerry Forrest, that her trial for murder be permanently stayed. 2Put shortly, it is the Crown case that in September 2009 the accused, then aged about 50, became the carer of the deceased, a gentleman aged 83. It is alleged that she befriended him and became involved in his financial affairs. In early 2010 she and the deceased opened a joint bank account, to which each of them had access. She persuaded the deceased to put his house up for sale, the sale proceeds to be used to build a house on land which she owned. The sale of the house realised a sum in excess of $300,000, which was deposited into the joint account. It is alleged that, without the knowledge of the deceased, she withdrew most of that money and deposited it into an account of her own. 3It is the Crown case that the accused wanted the money because she had been gambling heavily. It is alleged that she killed the deceased by administering to him tablets containing a lethal level of morphine. Her motive is said to be her desire to cover up her dishonest dealings with his money. Accordingly, the Crown case is one of premeditated murder. It is a circumstantial case of some complexity, and the trial is estimated to take up to 8 weeks. 4The application is based upon the state of the accused's health. On this issue I have in evidence a body of medical material, together with affidavits of the accused and of her solicitor, Ms Emma Hearne. Most importantly, she suffers from cervical cancer stage 3B. She is in custody and is currently held at the Long Bay Hospital. She has received treatment at Prince of Wales Hospital. She has a number of other ailments set out in a report of Dr Jacques Ette, a staff specialist GP with Justice Health. He describes her as suffering "multiple complex medical conditions." His report also sets out a cocktail of medications, including pain killers, which she is taking. 5The accused suffers from a left hydronephrosis, apparently an effect of the cancer. As I understand it, this is the result of pressure of the tumour upon the ureter, causing difficulty passing urine. It has been treated by the insertion of a ureteric stent. She suffers chronic pelvic/abdominal pain. Whether that is the result of the cancer and the treatment for it is not clear. Unrelated to the cancer, she has a swollen left leg, being a thrombus at the left common femoral vein, which is treated by anticoagulant medication. She has a history of weakness in the right shoulder, and over the last 12 months she has complained of weakness in the right arm, in the left leg, together with numbness and back pain. She had been diagnosed with chronic regional pain syndrome, and she is in a wheelchair. (She told a psychiatrist, to whose report I shall refer, that it was an injury to her back following a fall which led her to being wheelchair bound. Whether or not that is so is immaterial. It is not in dispute that she needs a wheelchair.) 6The cancer was detected late in 2012, and at Prince of Wales Hospital it was treated by radiotherapy, concluded in January of this year. She was under the care of Associate Professor Michael Jackson, a radiation oncology specialist, who has given evidence. She has also recently been examined by Dr John Schmidt, an obstetrician and gynaecologist, engaged by Ms Hearne. He has provided a report and given evidence. 7Associate Professor Jackson said that the accused has a tumour involving the cervix and the parametrium, which is the soft tissue on either side of the uterus. He also referred to the consequent obstruction of the ureter. He said that apart from radiotherapy to the pelvic area, cancer of this kind is normally treated by a form of internal radiotherapy known as brachytherapy. Dr Schmidt explained that this treatment puts the "radiotherapy wires directly onto the tumour", so as to have more "direct action" upon it, rather than "external beam" radiotherapy. Associate Professor Jackson said that that treatment provides "an extra dose to the cervix itself and the immediately surrounding areas". Unfortunately, the accused refused to undergo brachytherapy on two occasions when it had been arranged for her, and it is now too late to undertake it. 8CAT scans conducted a week ago, on 2 May, reveal that there has been no significant reduction in the size of the tumour but there is no evidence that it had spread to the lymph nodes, liver or the chest. However, Associate Professor Jackson explained that a CAT scan might not be reliable in detecting "small volumes of disease in other parts of the body." For that purpose a PET (positron emission tomography) scan is preferable, but that scan would not normally be conducted until about 6 months after the completion of radiotherapy, a period which has not yet expired. 9At the forefront of the evidence of Dr Schmidt and Associate Professor Jackson was the accused's prospect of surviving the cancer. They agreed that normally women with stage 3B cervical cancer have a 40% chance of surviving for 5 years. They also agreed that in the accused's case that prospect was reduced because she had not undergone brachytherapy. Dr Schmidt put the prospect of a 5 year survival rate at 20%, which he described as "dismal." Indeed, he thought it unlikely that she would survive beyond 2 years. 10Dr Schmidt gave evidence before the recent CAT scans had been performed. Nevertheless, he explained the risk of secondary tumours spreading to other parts of the body and into the bloodstream, thereby travelling to the lungs and even to the brain. In cross-examination he said that he was "being very lenient" in giving the accused a 2 year life expectancy, saying that she could get "a recurrence of the tumour within 12 to 24 months, probably more likely 12." He added that it was a "pretty nasty sort of tumour in terms of where it is and the organs which it involves." Asked whether that recurrence could occur within a period of less than 12 months, he replied that it could but that it was "hard to know." He thought that she could "probably get away with it" for 8 to 10 months, but acknowledged that that was "just an assumption." He added, "Medicine has vagaries and it is very, very difficult to know." 11Associate Professor Jackson was less pessimistic about the accused's prognosis. He described prognosis as "always very difficult." Apart from his contact with her through treatment, he had seen her briefly at court on 6 May, when he gave evidence. He described Dr Schmidt's projection that she would die within 12 to 24 months as "certainly unfortunately possible", but "pessimistic." He suggested that her chance of being "alive and well at 2 years" was in the range of 25 to 30%, adding that it was "very hard to be sure." He thought that there was "some possibility" that she would survive for 5 years. He put that within the same percentage range. 12He agreed with Dr Schmidt that there is a danger of secondary tumours, mostly in the lungs and the liver but also, less commonly, in the brain. In response to cross-examination, he could not say whether the existing tumour was still active but agreed that it could be, in which event the possibility of secondaries was "real." He also agreed that the accused's other health problems could affect her survival rate, saying that "people who have other diseases ... are less likely able to fight the cancer and tolerate aggressive treatment." In that respect he referred to her venous thrombosis and the difficulty of performing surgery on people requiring anticoagulant medication. He also referred to her mental state, describing her as "not entirely compliant with treatment" and saying this had made it "difficult for her to participate as fully ... in the treatment as we would have liked." He added that this was "a rather vague thing and difficult to put a number on it." As an example of this he referred to her refusal on two occasions to undergo brachytherapy, for which she gave reasons which are understandable but which he saw as "not entirely sensible." 13In cross-examination Associate Professor Jackson was asked questions directed to the accused's capacity to follow the course of her trial and, if necessary, to give evidence. He agreed that in his experience people diagnosed with cancer suffer depression and anxiety, which can result in a diminution of the short term memory and the ability to concentrate and to focus. He agreed that he had had difficulty with her being able to "concentrate and make sensible and rational decisions about her treatment." However, asked whether pain killers could have an effect upon concentration, he said that they could but that "most people who were on a stable dose seemed to manage quite well." Asked whether the accused might face problems giving evidence and being cross-examined if she was on a regime of medication involving regular doses which wore off before the next dose was taken, he said that that was possible "although doctors looking after her would try very hard to avoid that." He added that slow release tablets are available which could "maintain a steady level in the blood rather than having something every 4 hours where the levels are up and down, which is quite difficult to manage." 14Dr Schmidt described the side effects of radiotherapy, being inflammation to adjacent organs. Irritation of the bladder and bowel causes frequency of urine and diarrhoea, as well as nausea, all of which the accused had experienced. However, at the time he interviewed her he concluded that these symptoms "had settled to quite a degree." He thought she looked "reasonably well." In providing a history to him, he found her to be "cognisant and quite lucid" and he did not think that there was "any difficulty with her mental ability." 15She has also been interviewed recently by Dr Robert Reznik, psychiatrist. He found nothing of psychiatric significance in her history or presentation. She recounted a very disturbed background, which need not be examined for present purposes, but which Dr Reznik described as a category of "significant traumatic events." Speaking, as I understand it, of her account of her background and her medical condition, he described the information she provided as "complete and logical." He found that there appeared "to be no general impairment" of her understanding persons such as himself "or possibly other persons dealing with her legal matters." While he acknowledged that circumstances might change in the future, he reported that "the current review and past history" suggested that she "is a capable woman who would be able to manage her current circumstance." 16In her affidavits the accused deposes that, notwithstanding the medication, she has pain, including pain and discomfort from the stent when she urinates. She experiences nausea and suffers from diarrhoea, as well as frequency of urination. She eats little because consuming food gives her stomach cramps. She is constantly tired, sleeping only for a few hours each night. These conditions, she says, affect her concentration when she tries to work on notes for her case. 17In her second affidavit, of 8 April 2013, she deposes: "If I was to give evidence in Court I am not confident that I could answer questions properly because of the pain, my inability to concentrate and lack of focus. I might sit there and not be able to say anything, or I could burst into tears and not be able to talk, I could be so tired from the side effects from my treatment which also interferes with my concentration. I think I might have difficulties understanding the question even though I hear it and therefore might give the wrong answer. I might be too focused on the pain to concentrate. I feel I am repetitive (even now) and cannot structure my thoughts or sentences." 18The accused gave evidence, and was cross-examined about the material in these affidavits. To that I shall return. 19In her affidavits Ms Hearne, the solicitor, deposes that she has had a number of conferences with the accused last year and this year. From February of this year, in telephone conversations and in conferences, she has observed a deterioration in the accused's capacity to engage with her. She found the accused to be vague and apparently unable to answer questions, and became concerned about her capacity to instruct her. In a conference on 26 March 2013 she observed the accused to have difficulty recalling events that had happened in the previous days or weeks and in structuring sentences. Her head was "dropped" most of the time, and she appeared to be exhausted. 20On 5 and 8 April Ms Hearne conferred with the accused for the purpose of preparing her two affidavits. On each occasion this was a long process. Ms Hearne found it "very difficult and frustrating" obtaining the information she needed from the accused, who appeared to have difficulty maintaining attention on the matters being discussed. In these conferences the accused consistently complained of pain and tiredness and, generally, Ms Hearne observed a deterioration in her physical appearance and mental condition. Ms Hearne also expresses concern about the effect on her health of the daily regime of a trial, noting the uncivilised hours at which people in custody are taken to and from court. She foresees the accused's "ability to comprehend and provide instructions" diminishing "even further as the trial progresses." 21Counsel for the accused, Mr Grant, sought a permanent stay on the basis of what was said to be her fatal prognosis and her inability adequately to give evidence if called upon to do so at the trial. 22He submitted that to require her to face trial would be "out of accord with common humanity", an expression used by Lee J in Director of Public Prosecutions v Hakim (unreported, 16 May 1988) in determining that that defendant was entitled to a permanent stay. His decision was upheld on appeal: (1989) 41 A Crim R 372, per Kirby P (with whom Gleeson CJ and Clark JA agreed) at 376 - 7. There was medical evidence that Mr Hakim, a man in his late fifties, had a long history of ischemic heart disease, complicated by a complete heart block. He had a bypass operation which led to serious complications. He suffered a variety of physical, neurological and psychological conditions, and his prognosis was poor. These conditions and subsequent treatment had affected his memory. Lee J described his medical condition as "deplorable." 23All this appears from the summary of the evidence in the judgment of Kirby P. At the time of Lee J's decision the matter was still in the magistrates court. What does not appear from Kirby P's judgment is that Lee J, having said that it would not accord with common humanity to allow the charges against Mr Hakim to stand, added (at p 10): "... the probability is that it is very unlikely indeed that Hakim will come to trial and I ask myself whether one should just wait and see or whether it is not better at this stage to bring the proceedings to an end." 24His Honour found that the case "just falls within the class of case which can be regarded as abuse of process." As to that observation, Kirby P said (at 377) that it was not appropriate to consider whether it was necessary to establish an abuse of process to secure a stay in the context of the case. The President added, "It may be argued that such a stay will be granted in other circumstances where, although there is no abuse, a trial of the accused person cannot now fairly be had." In the seminal case dealing with this area of the criminal law, Jago v District Court of New South Wales & Ors (1989) 168 CLR 23, Deane J said at 57: "The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment." 25In Hakim, apart from that defendant's physical health, Lee J also had regard to evidence that his memory had been affected by his conditions and to some delay in bringing the proceedings against him, while stressing that that delay of itself could not have justified a stay. Putting aside the question of delay, Mr Grant submitted that the present case is very similar to Hakim in relation both to the accused's physical illness and its effect upon her mental state. 26On the issue of the accused's ability to give evidence, Mr Grant relied upon a passage from the judgment of Adams J, with whom Hodgson JA and Greg James J agreed, in R v Littler [2001] NSWCCA 173, 120 A Crim R 512. In that case the court held that the accused was entitled to a permanent stay. He was charged with sexual assaults upon children at a boys' home alleged to have occurred between 38 and 46 years earlier. He was in his seventies, and there was psychiatric and psychological evidence establishing that he suffered from poor memory, possibly the product of degenerative brain disease. It was the combination of that condition, the long period of time that had elapsed since the offences were said to have been committed, and the consequent difficulty of marshalling relevant evidence, which led the court to decide as it did. 27Clearly, that case is very different from the present case and Mr Grant did not suggest otherwise. However, he relied upon a passage in the judgment of Adams J at [49] in which his Honour considered what problems that accused would face in giving evidence. His Honour said: "The ability to give evidence coherently and fluently, without substantial hesitation and qualifications, to remember the evidence previously given in the trial by other witnesses as well as one's own testimony, quickly understand questions asked both in examination in chief and cross examination and formulate responsive and consistent answers are all vital to an accused. In all of this, concentration and short term memory are crucial. Juries are quick to see hesitation as playing for time, qualifications as lack of candour, and inconsistencies as proof of fabrication. It is very difficult to dispel the negative impression these factors may create, entirely unfairly though this might be. This will not necessarily mean that the trial will be unfair, let alone that it should be stayed, but, where it results from or is connected with a substantial delay not due to the accused, it must be considered, together with the other substantial prejudicial circumstances to which I have referred, in determining whether a stay ought be granted. These problems are not merely cumulative, but each multiplies the significance of the others." Mr Grant cited the whole of that passage, including the last two sentences for the benefit of fairness and completeness. However, it is the preceding observations of his Honour upon which he relies. 28In light of the fact that there was some conflict in the expert evidence as to the accused's mental state in that case, Adams J added at [55]: "If the psychological evidence were to be led at trial, as it well might need to be to give the jury a basis for fairly assessing the applicant's evidence, if he gave any, it would add greatly to the complexity and difficulty of the issues to be considered by the jury, especially as it deals with scientific opinions in an area where lay experience and common sense are unlikely to be good guides. The differences between the expert witnesses emphasise the difficulties of assessment." 29Relying on the evidence of Dr Schmidt, Mr Grant put it in oral submissions that the accused's "prospects of surviving are grim" and that "it is highly likely that she will be dead within 2 years." In supplementary written submissions he described her death within 2 years as "inevitable." This alone, he submitted, would be sufficient to justify a permanent stay. 30However, he also relied upon the evidence of the accused's impaired concentration and focus to be found in her own evidence and, significantly, the evidence of Ms Hearne. He acknowledged the evidence of Dr Reznik that she did not demonstrate any mental impairment, and his evidence and that of Dr Schmidt that she was able to provide a lucid history to each of them. However, he submitted that in that context she was speaking of significant events in her life which she could readily bring to mind. On the other hand, he argued, her giving evidence in this trial, in the light of a complex web of circumstantial evidence, would involve a mental agility and prompt grasp of detail which are now beyond her. 31He referred to her evidence before me, drawing attention to several questions by the Crown prosecutor which were not obscure, but which she appeared not to understand and asked to be repeated or clarified. To a jury, he said, responses like that could appear as evasive and reflect poorly, but unfairly, upon her credibility. He also noted that the Crown prosecutor challenged her honesty during her evidence, putting it to her that she was exaggerating the effect of her condition upon her mental capacity. It could be that expert evidence would have to be called about the matter, which was likely to be contested and which could lead to "a trial within the trial" about her mental state. This, he argued, would be impracticable and unfair. The passages from the judgment of Adams J in Littler quoted above, he said, are apt. 32Mr Grant argued that it would not be possible to fashion appropriate directions to a jury to guard against the prejudice created by the difficulties the accused would face in giving evidence, particularly if that necessitated expert evidence about her condition. It is also common ground that the accused's physical condition would require more breaks than usual during the day and, most likely, shorter sitting hours. This, he put it, would "test a jury's tolerance." In the light of the whole of the circumstances, he submitted, it would be inhumane to require her to face a lengthy and complex trial. 33The Crown prosecutor raised the question whether the evidence bearing upon the accused's capacity to participate in the trial and instruct her representatives might give rise to an issue about her fitness to stand trial. In that event, an important question relevant to the exercise of my discretion in this application would be the availability of the procedures under Pt 2 of the Mental Health (Forensic Provsions) Act 1990 for the trial of the issue of fitness and, if necessary, a special hearing. This was a matter central to the decision of the Court of Criminal Appeal in R v WRC [2003] NSWCCA 394, 59 NSWLR 273. It also arose in Agoston v R [2008] NSWCCA 116, in which WRC and other authorities were reviewed in the leading judgment of James J. However, of course, that is not how the accused's case is put, and in my own assessment I do not consider that the evidence goes so far as to raise an issue of fitness. 34There is no need to recite the long line of authority that the permanent stay of a criminal trial is a truly exceptional course. In Littler at [5], Hodgson JA put it this way: "As shown by Jago v District Court of New South Wales (1989) 168 CLR 23, a permanent stay is a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process." In WRC at [55], Spigelman CJ said: "A permanent stay of criminal proceedings is a wholly exceptional intervention into the processes of the criminal law. The public interest in ensuring that persons charged with crimes are tried is entitled to significant weight in the necessary balancing process. (See, for example, Jago (at 30 and 49 - 50). Because of this, as Mason CJ said in Jago (at 34): 'a permanent stay should be ordered only in an extreme case ...'." 35In the context of the present case, it is appropriate to add to those statements of principle an observation of Kirby P in Hakim. After referring to Lee J's conclusion that it would offend common humanity to require Mr Hakim to stand trial, his Honour added (at 377): "It will be a rare case that intervening illness or the physical or mental condition of the accused will bring the court to that conclusion." 36All that said, this is a distressing case on any view of it, and I have not found this application easy to determine. However, I am satisfied that it must be refused. 37Undoubtedly, the accused is seriously ill and it is likely that her life expectancy is limited. Of course, the assessment of life expectancy can be informed only by the prognosis of an appropriately qualified medical practitioner but, as Associate Professor Jackson emphasised, no such estimate can be made with certainty. The evidence of Dr Schmidt and Associate Professor Jackson, viewed as a whole, points to the risk that she will die within 2 years but leaves open the possibility of her living beyond that time. In that respect this case is different from Hakim. As noted at [23] above, Lee J thought it "very unlikely indeed" that Mr Hakim would come to trial, although it is perhaps not entirely clear whether his Honour was referring to the prospect of Mr Hakim's death or to the probability that he would be so ill as to be unable to attend the trial. 38I accept that the accused will have difficulties, physically, mentally and emotionally, in coping with her trial. I do not find it necessary to determine the question of her credibility raised in cross-examination by the Crown prosecutor, and I am content to proceed on the basis that the evidence she has given about her difficulties with concentration and focus is as she perceives them. Nevertheless, the ease with which Dr Schmidt and Dr Reznik communicated with her is significant. I do not accept that that is explained simply by the fact, as was her evidence, that she had taken a pain killer shortly before each of those interviews. More important, however, is the evidence she gave before me. While it is true that there were a few occasions on which she appeared not to understand what she was being asked in cross-examination, due perhaps to a lapse in concentration, on the whole she impressed me as being attentive to what she was asked and responsive in her answers. 39The balancing process referred to by Spigelman CJ in the passage from WRC cited above strongly favours the public interest in the trial proceeding. The accused is charged with the most serious of offences. The facts alleged, if established, would place this crime in the higher range of gravity of offences of its kind. Because of the accused's condition this will be a difficult trial to conduct. It is most likely that the court will need to sit for reduced hours and that frequent breaks will be required. It may be that special transport to and from court will be necessary, and it will be essential that her daily medical needs are catered for. 40If she does give evidence and encounters the difficulties which she has foreshadowed, it may be that expert evidence will need to be called. That would be unfortunate but, if it has to be, so be it. The jury would assess that evidence as they would any other expert evidence, and I do not accept that the potential for unfairness to the accused could not be averted by appropriate directions. Alternatively, the question whether the trial might better be conducted by judge alone may need to be addressed. That matter was not argued, and I express no view about it. 41That the trial might face unusual difficulties is not a justification for not conducting it at all. Certainly, if the accused were found guilty sentencing would not be an easy task. A deterioration of her condition might invoke the prerogative of mercy, preserved by s 102 of the Crimes (Sentencing Procedure) Act 1999. That matter was not addressed in argument. 42In all the circumstances, I am not persuaded that the exceptional remedy of a permanent stay of these proceedings is called for. The application is refused.