R v Hugh Edward MURRAY [2011] NSWDC 258

District Court New South Wales

Medium Neutral Citation: R v Hugh Edward MURRAY [2011] NSWDC 258 Hearing dates: 20 June 201125, 27-29 June 2011 Decision date: 29 July 2011 Before: GD WOODS QC DCJ Decision: Permanent Stay Granted Catchwords: Fitness To Be Tried Permanent Stay Legal History Legislation Cited: Mental Health (Forensic Procedures) Act 1990 Cases Cited: Jago v District Court of NSW (1989) 168 CLR 23 Rogers v R (1994)181 CLR 251 Walton v Gardiner and Ors (1993) 177 CLR 378 R v Smith and Ors [1995] 1 VR 10 R v WRC [2003] NSWCCA 394 DPP v Shirvanian (1998) 44 NSWLR 129 R v Hakim (1989) 41 A Crim R 372 Subramaniam v R (2004) 211 ALR 1 Category: Principal judgment Parties: Hugh Edward MURRAY (Appellant) Regina (Crown) Representation: Mr A Charleston (DPP) Mr E Balodis (Crown) Mr G Walsh (Appellant) File Number(s): DC 2009/00063315

Judgment 1HIS HONOUR: The accused is charged with sexual offences in the nature of indecent assault, relating to alleged conduct in the 1960's and 1970's involving schoolboys. 2The accused Hugh Edward Murray has been found unfit to be tried on 9 September 2010, and on 1 December 2010 the Mental Health Review Tribunal determined that he is unlikely to become fit for trial within the twelve months following the finding of unfitness. 3The DPP now seeks a special hearing of the charges, in accordance with the Mental Health (Forensic Procedures) Act 1990. 4By Notice Of Motion the accused seeks a permanent stay of the proposed special hearing. Alternatively, he seeks a temporary stay of a period sufficient to permit the accused to undertake various tests and possible treatments being currently considered by his treating cardiologist, Professor Kiat. 5There is a power in the District Court to make orders conditionally or permanently staying proceedings before it. In Jago v District Court of NSW (1989) 168 CLR 23 Mason CJ said: "It is clear that Australian Courts possess inherent jurisdiction to stay proceedings which are an abuse of process..." 6In that case Gaudron J emphasised the exceptional nature of the remedy and the necessity to consider the whole relevant legal context before granting a permanent stay: "...a Court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if un-remedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay." 7Decisions from various Australian jurisdictions make clear the variety of circumstances and legal contexts in which a permanent stay might be considered. For example Rogers v R (1994)181 CLR 251 involved a question of the admissibility of evidence; Walton v Gardiner and Ors (1993) 177 CLR 378 involved charges before a medical tribunal; R v Smith and Ors [1995] 1 VR 10, involved prosecution of numerous police on murder charges. The doctrine of abuse of process has resulted in diverse orders for stays (or for declining the grant of a stay) depending on the legal context. 8In relation to a finding of unfitness for trial, there is no doubt that the doctrine of abuse of process may be applicable, but if a permanent stay order is to be made, it cannot be made unless the Court gives appropriate consideration to the existence of any alternative to the making of a permanent stay order, R v WRC [2003] NSWCCA 394. A stay order must be a remedy of last resort. 9In DPP v Shirvanian (1998) 44 NSWLR 129 his Honour the President explained something of the history of the doctrine of abuse of process and said: "Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in Courts generally." 10Mason P. further said: "In my view Jago v District Court (NSW) resolves in Australian law the question whether a Court has the power in an appropriate case to stay criminal proceedings permanently for oppression amounting to abuse of process. The narrowness of the criteria upon which the power might properly be exercised was expressed in different ways by the various justices. However each (with the exception of Brennan J) asserted the ultimate proposition." 11In the present case, the principal basis for the application to stay proceedings is that the accused is very old, very ill, and that the stress involved in the proposed proceeding would be likely to gravely endanger him or even kill him. 12Extreme medical frailty has been cited as a basis for a stay of criminal proceedings. In R v Hakim (1989) 41 A Crim R 372 the Court confirmed a decision by Lee J to stay a prosecution. Gleeson CJ said: "The reason that Lee J decided as he did was based upon the medical condition of Mr Hakim which was outlined in his Honour's judgment. Mr Hakim had a long history of ischaemic heart disease. This has been complicated by a complete heart block. He had undergone a by-pass operation in 1981 and had suffered serious complications. He suffered, as the medical evidence showed, a range of physical, neurological and psychological conditions. His prognosis was poor. His memory had been affected by his condition and subsequent treatment. Lee J concluded that his condition had deteriorated from the time he had first been seen by Dr Nasser whose evidence was referred to. This consultation had taken place in January 1984. Although his Honour did not have up to date medical evidence on Mr Hakim's condition evidence was called before him to show that Mr Hakim at the time of the proceedings before the magistrate and since had been confined to a prison hospital. From this catalogue of misfortune, Lee J concluded: "He has been in hospital, now in the gaol hospital for six months and it is put to me that in those circumstances his declining deteriorating medical condition is of such a nature and should be viewed in such a light that the conclusion be drawn that to allow this charge to remain would amount to an abuse of the process of the Court. As I have said it is somewhat unfortunate that the Court has not an up to date report on Hakim's condition but in the circumstances I am unwilling to regard the deplorable medical condition in which Hakim finds himself as other than a reason for upholding the decision of the magistrate in this case. Lee J had before him a wealth of material concerning the medical condition of Mr Hakim at the time the matter was before the Magistrate. He could infer that Mr Hakim's condition had not improved, had probably deteriorated and this was to some extent confirmed by the evidence of his confinement to the prison hospital. In all of the circumstances, I am not convinced that an error of principle has occurred which requires the intervention of this Court. If, as Lee J found, it would offend common humanity to now require Mr Hakim to stand trial on the further charge of conspiracy, it was open to Lee J to stay the proceedings upon that charge. It will be a rare case that intervening illness or the physical or mental condition of the accused will bring a Court to such a conclusion. But Lee J was brought to it. And I would not disturb that conclusion in the facts of this case." 13The test that the continuation of proceedings would be an offence against "common humanity" was used by the High Court in Subramaniam v R (2004) 211 ALR 1 where the High Court said: "[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. [32] It is true that the medical evidence given by Dr Menzies and accepted by the primary Judge established 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. It would no doubt have been better had the trial Judge discussed the principles relating to stays and might therefore now be able to be seen to have applied them to particular parts of the medical evidence which he was disposed to accept. But nonetheless it does appear that the primary Judge did have regard to the whole of the medical evidence in reaching the decision that he did. [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. The primary Judge has not been shown to have failed to weigh and give effect to relevant factors of the kind to which Mason CJ, Deane and Dawson JJ referred to in Walton: a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are 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. [34] We are not persuaded therefore that the primary Judge erred in holding that the appellant's mental condition, or even the chances of its deterioration however caused, warranted the grant of the stay, and that the majority in the intermediate Court erred in relation to that holding. The holding of the primary Judge was essentially a factual one and included a discretionary component. His Honour's position was that it was in everyone's interests, including the appellant's that the trial proceed as quickly as possible. [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. " 14Although a stay was not granted in Subramaniam, the High Court plainly envisaged that there might be circumstances where the medical condition of an accused was such that the continuation of the proceedings against him would be an offence against common humanity and in respect to which a stay should be granted. 15In the present matter I see the case of Subramaniam as providing the correct guidance for me in approaching this application. I am required to identify relevant principles applicable to stays and to apply them to the parts of the medical evidence which I accept. In doing so I am bound to consider (inter alia) fairness to the accused, the legitimate public interest in the disposition of serious criminal charges and the need to maintain confidence in the administration of justice.