Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: RM v R [2012] NSWCCA 35
• Hearing dates: 30 January 2012
• Decision date: 19 March 2012
• Before: Whealy JA at [1]; R.S. Hulme J at [92]; Hidden J at [94]

Decision

(1) Leave to appeal granted on the limited basis as to whether stay should be granted in relation to the mental illness issue.

(2) In relation to that issue, the appeal is allowed and the matter remitted to the trial judge to consider afresh whether a stay should be granted.

(3) Otherwise, in relation to all other issues, leave is refused.

• Catchwords: CRIMINAL LAW - Appeal - Special Hearing - s 19 Mental Health (Forensic Provisions) Act 1990 - interlocutory judgment refusing to permanently stay criminal proceedings - whether an intellectually handicapped accused knew right from wrong at the material time - whether substantial delay had resulted in unfairness to the accused in adducing evidence - a permanent stay is only to be granted in the extreme case where the apprehended defect is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.
• Legislation Cited: - Criminal Appeal Act 1912 (NSW) - s 5F(3)(a); - Mental Health (Forensic Provisions) Act 1990 (NSW) - s 19
• Cases Cited: - Agoston v R [2008] NSWCCA 116; - Barton v R (1980) 147 CLR 75; - Dupas v R (2010) 241 CLR 237; - Jago v District Court of New South Wales & Ors (1989) 168 CLR 23; - R v Edwards (2009) 83 ALJR 717; - R v Glennon (1992) 173 CLR 592; - R v Porter (1933) 55 CLR 182; - R v RWO [2002] NSWCCA 133; - R v WRC (2003) 59 NSWLR 273; - Reg v S [1979] 2 NSWLR 1; - Stapleton v R (1952) 86 CLR 358; - Subramaniam v R (2004) 211 ALR 1
• Category: Principal judgment
• Parties: RM (Appellant); Crown (Respondent)
• Representation: Counsel: M.J. McAuley (Appellant); Ms J.R. Dwyer (Crown); Solicitors: McAuley Hawach Lawyers (Appellant); Director of Public Prosecutions (Crown)
• File Number(s): 2009/228256

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2011-10-14 00:00:00
• Before: Woodburne SC DCJ
• File Number(s): 2009/228256

Judgment

1 WHEALY JA : This is an application for leave to appeal brought pursuant to s 5F(3)(a) Criminal Appeal Act 1912 (NSW) against an interlocutory judgment of her Honour Judge Woodburne SC (I shall for convenience refer to her Honour as "the trial judge" notwithstanding that the proceedings before her, as will be seen, were not a trial) refusing to permanently stay certain criminal proceedings. The application for a permanent stay was made on behalf of the applicant at the conclusion of the evidence on a special hearing without a jury, ordered pursuant to s 19 Mental Health (Forensic Provisions) Act 1990 (NSW). The special hearing canvassed evidence in support of allegations that the applicant had sexually assaulted his young female cousin on repeated occasions between 1989 and 1992 when she was aged between about eight and twelve years, and the applicant was aged between eighteen to twenty-one. For the purposes of this judgment I shall refer to the applicant where it is necessary to do so as "RM" and the complainant as "DB". Other family witnesses in the case will be referred to by their initials.

2 I shall first briefly trace the history of the matter. The complainant first reported the alleged sexual incidents to the police in September 2009, that is, some twenty years after their first occurrence. The applicant was interviewed by police on 13 October 2009. On 12 October 2009, the complainant had telephoned the applicant and confronted him, in a general sense, with the allegations she had made. This telephone conversation was the subject of a lawful telephone intercept and during the conversation certain admissions, again of a general nature, were made by the applicant.

3 He was charged with a number of offences relating to sexual incidents involving the complainant and subsequently committed for trial from Parramatta Local Court on 16 July 2010. The matter was listed in the District Court for arraignment on 15 December 2010. A fitness hearing was held before his Honour Judge Peter Johnstone. The applicant was found unfit for trial by reason of intellectual disability and was also found unfit to plead to the counts in the indictment. There was common agreement between the medical practitioners whose reports were tendered at the hearing that the applicant was unfit for trial and would remain so.

4 The Mental Health Review Tribunal had to assess the probability of the accused being found fit to plead within twelve months. This hearing took place on 22 February 2011. The Tribunal, by its Deputy President, advised the District Court on 4 March 2011 that the Tribunal had found that there was no probability that the accused would be fit to plead, or fit for trial, within twelve months in respect of the offences in the indictment. The Director of Public Prosecutions was notified. He then indicated, pursuant to s 19 Mental Health (Forensic Provisions) Act that further proceedings would be taken in respect of the offences alleged in the indictment.

5 An indictment alleging some twenty counts of sexual intercourse with a minor and indecent assault on a minor came before his Honour Judge Armitage in the District Court on 1 August 2011. An application was made on that day by the applicant for a permanent stay of proceedings on the charges in the indictment. His Honour refused the application. There was no appeal from that decision.

6 The special hearing was re-listed before the present trial judge on Friday, 5 August 2011. The matter proceeded to hearing before her Honour over some twelve days in August 2011. On 25 August, submissions were made both by the Crown and on the applicant's behalf. These addressed a number of issues. First, as to whether the Court, on the limited evidence, should find that the offences were committed. Secondly, whether the accused had demonstrated that, at the time of the alleged offences, he did not know right from wrong. Thirdly, the appellant renewed his application for a permanent stay.

7 On 14 October 2011, the trial judge gave her decision in relation to the stay application. She determined that the application for a stay should be refused. Her decision dealt with two broad topics. These were, first, whether that delay in the proceedings had resulted in an acceptable level of unfairness for the applicant in relation to the issue as to whether the offences had or had not been committed. Secondly, there was the issue whether delay had resulted in unfairness concerning the issue as to whether the applicant could demonstrate that he had not known right from wrong at the time of the commission of the alleged offences. Her Honour's view, in relation to both issues, was that the delay that had undoubtedly occurred did not justify the extreme step of permanently staying the proceedings.

8 On 4 November 2011, her Honour determined that, in light of the fact that leave to appeal had by then been sought against her earlier decision, she should defer delivery of her ultimate judgment in the special hearing until after the outcome of the application for leave to appeal.

9 The Amended Notice of Application for Leave to Appeal against the trial judge's interlocutory judgment contains seven grounds and one paragraph containing particulars. These are as follows:

"2.1 The defect in the special hearing of alleged historic sexual offences, said to have been committed approximately twenty years ago, by an intellectually handicapped person, was such that nothing that the judge could do in the conduct of the special hearing could relieve against its unfair consequences.

2.2 There was nothing the trial Judge could do in the conduct of the trial that could relieve against the uncertainty as to the accused's ability to tell right from wrong as at the time of the commission of the alleged offences.

2.3 There was nothing that the trial Judge could do in the conduct of the trial that could relieve against the unfair consequences of the absence of the witness, SM.

2.4 There was nothing that the trial Judge could do in the conduct of the trial that could relieve against the unfair consequences of the absence of the witness, AM.

2.5 The test applied by her Honour as to whether to grant a permanent stay was whether the case was an extreme or singular or exceptional one such that the continuation of proceedings would involve unacceptable injustice or (sic) fairness.

2.6 Her Honour applied an incorrect test, the correct test being, not whether the case can be characterised as extreme or singular or exceptional, but whether the apprehended defect is of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.

PARTICULARS OF PREJUDICE

3.1 Intervening death of [SM], who had given a computer to the accused.

3.2 Substantial modifications to the complainant's family home.

3.3 Absence of documentary records of complaint to the Department of Community Services (DOCS).

3.4 Absence of records in respect of cars owned or used by the accused as at the time of the alleged commission of the said offences.

3.5 Absence of the records of complaint from Cerdon College.

3.6 Difficulty of recollection of [Mrs BM], the accused's mother.

3.7 Intervening death of [AM], the accused's father.

3.8 Uncertainty as to the accused's ability to tell right from wrong as at the time of the alleged commission of the offences.

3.9 Intervening death of the accused's general practitioner at the time of the alleged commission of the offences.

3.10 Absence of two schoolteachers to whom the complainant made her initial complaint.

3.11 Deliberate decision by the complainant and her family not to report offences when first became known to the complainant's family.

4. Even if the apprehended unfair consequences of the above individually could be relieved by the judge in the conduct of the special hearing by thorough and appropriate directions, the cumulative effect of the above matters was such that there was nothing that the judge could do in the conduct of the special hearing that could relieve against its unfair consequences."

10 As can be seen, the particulars in support of the appeal grounds referred in detail to the absence of witnesses and documents, all of which had been relied upon before the trial judge at the time of the application for permanent stay. There was also reliance placed upon the fact that a deliberate decision, it appears, had been made by the complainant and her family in about 1995 not to report offences after they had first been revealed by the complainant to family members. This was apparently on the basis that the complainant and her family felt they owed respect to the applicant's father. This decision, it also appears, was maintained until after the appellant's father's death in November 2001 and then for some further time thereafter.

11 For completeness, I should record that during the hearing her Honour had heard submissions about a number of matters relevant to the conduct of the special hearing. These included matters relating to the admissibility of admissions alleged to have been made by the applicant, and to the related issue as to whether her Honour should admit the electronically recorded interview which had taken place on 13 October 2009. On 18 October 2011, her Honour determined that she would admit the intercepted telephone conversation of 12 October 2009. Her Honour, however, determined that she would reject the tender of the electronic interview. Her Honour gave reasons in respect of each of these matters.

12 On the hearing of the application for leave, a number of documents were tendered by consent before this Court. These included the following:

Exhibit A	Transcript of ERISP recording with the applicant	13.10.09
Exhibit D	DVD containing ERISP interview and inter-cepted telephone conversation	12.10.09
Exhibit C	School reports relating to applicant	various

13 The ERISP interview, as I have said, was rejected by her Honour as evidence in the special hearing. It was, however, tendered by consent on the present application as relevant to the issue of the applicant's understanding of whether his actions some twenty years ago had been right or wrong. Care has to be taken, of course, in relation to this material as the interview occurred many years after the alleged sexual incidents. Moreover, care is required for the further reason that, strange as it may seem, the police apparently were unaware at the time of the interview in October 2009 that the applicant was labouring under an intellectual disability, as indeed he had been all his life.

14 During the special hearing, a number of amendments were made to the charges in the indictment. In the end, of the twenty or so counts finally alleged against the applicant, there were verdicts entered in his favour in respect of counts 11 to 15. In relation to the remaining counts, the Crown prosecutor submitted at the conclusion of the evidence that there was sufficient evidence available for the Court to be satisfied beyond reasonable doubt that each of these offences had been committed. The Crown placed particular reliance on admissions made by the applicant to the complainant's family, to his family and especially those admissions contained in the intercepted telephone conversation of 12 October 2009. In relation to all these admissions, the Crown conceded that they did not relate to any of the specific counts in the indictment, but generally were relevant as admissions of the applicant's misconduct towards the complainant during the relevant years.

15 The limited evidence adduced by the Crown in presenting its case included evidence from the complainant, her mother, father and sister. There was also brief evidence from a counsellor (Karen Horsley), who had been employed at the college attended by the complainant in 1994. There was also evidence from Dr Olav Nielssen on the issue relating to the applicant's ability to know right from wrong. I shall refer to this evidence in a little more detail at a later point in these reasons.

The defence position

16 Notwithstanding the difficulties facing the legal representatives for the applicant, given his mental disability, Mr McAuley, his counsel, mounted a relatively substantial case attacking the reliability of the complainant. This attack focused on the improbability that certain events occurred when and as she said they did. It focused as well on the substantial delay in reporting the matter to the police and the family decision not to take the matter to that authorities when the alleged complaints were first revealed to family members. Mr McAuley also relied on the effects of delay in relation to the significant forensic disadvantages flowing to the applicant's legal representatives in assembling and presenting evidence. It was this latter topic that was relied on for the purposes of the stay application. There were, in that regard, two principal areas of complaint. These were, first, the difficulties encountered by the applicant in adducing evidence on the issue as to whether he had committed the offences. Secondly, there were the difficulties confronting the applicant in relation to the issue where he bore the onus, namely, proof on the balance of probabilities that he did not know, at the time of the alleged offences, the difference between right and wrong.

Prejudice in relation to whether the offences were committed

17 On the first issue, the applicant has provided a helpful table which sets out the individual allegations and the location where each is said to have occurred. It also identifies briefly the reason for the prejudice claimed by the applicant.

	Allegation	Crimes Act	Location	Evidence	Specific prejudice
1	Sexual intercourse digital penetration	S 66A	Living room of accused's home	T33-39, 188-199, 193-194, 203, 226-229, 232-236, 251
2	Digital penetration	S 66A	Computer room of accused's home	T40-44, 186-188, 203, 214-215, 217-219, 244, 252, 263-267, 290-292, 294-295, 305	Death of SM
3	Indecent assault - rubbing of vagina	S 61E(1)	Computer room of accused's home	T40-44, 186-188, 203, 214-215, 217-219, 244, 252, 263-267, 290-292, 294-295, 300, 305	Death of SM
4	Indecent assault - grabbing hand, placing on accused's penis	S 61E(1)	Computer room of accused's home	T40-44, 186-188, 203, 214-215, 217-219, 244, 252, 263-267, 290-292, 294-295, 305	Death of SM
5	Sexual intercourse - digital penetration in pool	S 66A	Pool at accused's home	T44-45, 236, 244-245, 295, 305
6	Indecent assault - placing of accused's penis against complainant's back	S 61E(1)	Pool at accused's home	T44-45, 236, 244-245
7	Indecent assault - forcing complainant to rub and tug accused's penis	S 61E(1)	Pool at accused's home	T44-55, 236, 244-245
8	Indecent assault - stripping complainant of her clothes	S 61E(1)	Garage at accused's home	T55-57, 57-61, 245, 249, 302-304
9	Indecent assault - accused placing complainant's hand on his penis in bedroom	S 61E(1)	Bedroom at accused's home	T57-61, 209, 252-254, 302-304
10	Sexual intercourse - complainant made to suck penis of accused	S 66A	Bedroom at accused's home	T57-61, 209, 252-254, 302-304
16	Aggravated indecent assault - rubbing of complainant's vagina	S 61M(1)	Complainant's home - dining room	T61-64, 66, 244-263, 304	Modifications to complainant's family home
17	Aggravated indecent assault - placing complainant's hand on accused's penis	S 61M(1)	Complainant's home - dining room	T61-64, 66, 244-263, 304	Modification to complainant's family home
18	Aggravated indecent assault - accused touching complainant's vagina	S 61M(1)	Accused's car	T67-69, 222-226	Absence of documentary records regarding cars owned or used by accused
19	Aggravated indecent assault - accused placing complainant's had on accused's penis	S 61M(1)	Accused's car	T67-69, 222-226	Absence of documentary records regarding cars owned or used by accused
20	Aggravated indecent assault - touching of complainant's vagina	S 61M(1)	Accused's home - bathroom - accused's 21 st birthday	T71-74, 263-266

18 On this issue (as to whether the offences were committed), the applicant elaborated a number of areas of prejudice in relation to individual counts in the indictment. In relation to Counts 2 to 4, the death of his uncle SM, who had given the computer to the accused as a birthday present, meant that the defence had been hampered in proving definitively that the computer had not been placed in and used in the applicant's home until well after the point in time ascribed to the incidents by the complainant. She had described a time-frame following the applicant's eighteenth birthday, whereas the computer was not installed until after the applicant's twenty-first birthday. Prior to that time, the room was used as a bedroom.

19 In relation to the Counts 16 to 17, which related to incidents which were said to have occurred in the dining room of the complainant's home, there had been at some point of time substantial modifications to this house. Records relating to the nature and timing of those modifications were no longer available. Finally, in relation to Counts 18 and 19 (which related to incidents said to have occurred in a car or cars owned or used by the applicant), there was an absence of documentary records regarding car ownership and their usage, brought about by the effluxion of time.

20 Generally, in relation to all the allegations there were other matters said to demonstrate prejudice. These included the absence of documentary records in relation to a complaint to DOCS, the absence of records of complaints at the college where Ms Horsley had been a counsellor, the death of the applicant's father (who had been the dominant member of the applicant's household), and the impaired recollection of his mother, Mrs BM.

21 The applicant's case was that, while there had been some admissions made by him of some general misconduct towards the complainant, none of the admissions related to any specific events. Moreover, there was outright denial of the allegation in Count 10 and also in relation to the incident alleged in Count 20.

Prejudice in relation to defence of mental illness

22 It was acknowledged throughout the proceedings that the applicant bore the onus in relation to this issue. There was no contest that the appellant suffered from a mild to moderate intellectual disability. This was accepted by all the practitioners who had examined him. Equally, as I have said, all the practitioners considered that he was unfit for trial and would be likely to remain so.

23 However, in his August 2011 report, Dr Olav Nielssen (who provided evidence for the Crown) expressed an opinion as to whether the applicant had a disease of the mind and also whether he had the ability, at the time of the alleged offences, to appreciate the wrongfulness of his actions. This opinion was expressed in the following terms:

"[The applicant] has mild mental retardation, which is not usually considered a disease of the mind unless there is an additional mental illness giving rise to false beliefs or other symptoms of mental illness. Mental retardation alone would not typically leave open the defence of mental illness.

With regards [his] ability to understand that his actions were wrong, clearly his intellectual disability reduced his capacity to consider the legal consequence of his actions or the effect of his behaviour on his cousins.

However, I believe he would have had some capacity to recognise that his behaviour was wrong on the basis of his overall level of social performance. He kept the offences secret, he has not committed other similar offences for lack of recognition that the behaviour was wrong and generally adhered to other rules, for example, the road rules."

24 Mr Marcelo Rodriguez, a psychologist, had made an earlier assessment of the applicant's degree of mental retardation. He said:

"In terms of his global intellectual function, [RM] currently functions at the extremely low range of intellectual function. This performance was not surprising given his account of his educational attainments and longstanding low intellectual functioning. [His] Full Scale IQ fell in the Extremely Low range of intellectual function according this administration of the WASI. His intellectual function falls in the bottom 1% of individuals his age."

The psychologist expressed the view that this level of intellectual functioning meant that the applicant met the criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, 4 th Edition (DSM-IV, American Psychiatric Association 1994).

25 In a subsequent report (28 July 2011), Mr Rodriguez addressed the issue of mental illness. He said that:

"Assuming that the allegations against Mr [RM] are true and correct, I have a number of comments to make. Mr [RM's] mental age was younger than his chronological age, based on his ability to use average intellect, reason and cognitive flexibility in the face of novel and uncertain contexts. It is therefore highly probable that he could not manage his emerging sexuality, as would a young man with average intelligence. It is likely that he did not receive sexual education and if he did, it is more likely than not that he did not fully appreciate what constituted appropriate sexual behaviour, i.e. courting behaviour and consent. ...

On the balance of probability, in my opinion, which is based on multiple assessments and documentation, Mr [RM] was incapable of understanding that any improper sexual behaviour was morally wrong."

26 Professor Susan Hayes, a clinical psychologist and a professor of behavioural sciences in medicine, provided a report in July 2010. It was her opinion that RM, aged thirty-eight at the time of the assessment, had a mild/moderate intellectual disability which, in her view, meant that he had been incapable of understanding the police caution and his right to remain silent at the time of the ERISP. (It was this opinion that had been the focus of the trial judge's finding that the ERISP should be excluded.) Professor Hayes thought that the applicant's functional age equivalent was seven years and six months for oral, reading and written language. It was eight to nine and a half years for everyday communication skills.

27 Both Dr Nielssen and Mr Rodriguez gave evidence at the special hearing. Dr Nielssen, in his evidence in chief, adhered to his opinion that the applicant's disability had only partly deprived him of the knowledge as to whether his actions were morally wrong (AB Vol 4, 772). He referred once again to the reasons he had given in his written report for this opinion. In particular, he referred to the fact that, at least on the complainant's evidence, there had been some attempt to distract others from seeing what was occurring and attempts had been made, for example, to keep the incidents away from other people's eyes. These actions demonstrated "some capacity" to recognise, at the time, that the behaviour was wrong. He added:

"Yes, I mean I agree that [RM] does have an intellectual [sic] and that his understanding of the extent to which behaviour might be wrong would be less than another person's, and also his capacity to restrain himself, perhaps, or to consider the consequences of his behaviour would also be lower than other persons. Although I don't think there was a complete inability to recognise that the action was wrong."

28 In the final portion of his evidence in chief (AB Vol 4, 774, 20-30) Dr Nielssen gave the following evidence:

"Q. To the extent that you give your opinion that because of his limited intellectual capacity Mr RM would have had some limitation on his capacity to understand what he was doing was wrong but not complete lack of such capacity, is it your opinion that that lack of capacity to the extent that it arises does not arise in the context of his having a 'mental illness'?

A. That's right, not a mental illness, certainly not as defined under the NSW Mental Health Act , which comprises basically of a psychotic illness such as schizophrenia or bipolar disorder, or some combination thereof, and not a psychotic illness as I understand has generally been accepted to be a mental illness under the McNaughton Rules, resulting in a defect of reason in the form of either a delusional belief or a gross disorganisation of thinking."

(It might be noted that this categorisation by Dr Nielssen does not accord with the legal test.)

29 In his cross examination, Dr Nielssen conceded that, in forming his opinion as to RM's capacity to know right from wrong at the time, he was handicapped by the lapse of time. He said (AB Vol 4, 775, line 5):

"A. Yes. It's a sort of - it's a guess really as to what his moral - ability to moral reasoning was like at that time.

Q. Why do you say that?

A. Well, I've only met him now getting on to twenty years later and everybody, including people with intellectual disability, matures over time and learns more about, you know, social rules over time. So I'm really just guessing what he was like at that time."

30 The trial judge asked Dr Nielssen whether he had had access to letters by a neurologist, Dr King, and whether he had considered a report of an MRI scan of the applicant's brain. Her Honour asked the witness whether there was anything in that material that would indicate or cause him to conclude that Mr RM did not have the capacity to recognise that his behaviour was wrong. Dr Nielssen indicated that there was nothing in the MRI scan which indicated anything other than normality, but he conceded that Dr King's letters could not cast much light on the applicant's mental function at the earlier point in time when these offences were alleged to have been committed. The treatment Dr King was describing was for grand mal epilepsy and seizures in about 2000.

31 Mr Rodriguez, in his evidence in chief (AB Vol 4, 781) gave the following evidence:

"Q. Now, just assuming for the purposes of argument that those allegations are in fact correct, are we at any disadvantage in assessing RM's understanding of right and wrong as at the period 1989 to 1992?

A. As I understand it, RM was between the ages of eighteen and twenty-one. There are clear records that he had experienced a number of educational and social problems, problems with learning. There are records from family and school that he had difficulties. In my opinion his capacity for reasoning, to use high order judgment because of his development disability, was not the same as someone who had an average intelligence. In a sense he was not bestowed with an average intelligence and that, in my opinion, has prevented him, or had prevented him from using moral reasoning to a high degree which suggests that he was impaired in his ability to understand right from wrong. He may have had an understanding of what he was doing from a bodily perception in the sense that the sexual contact was arousing, but he did not have the capacity to understand the moral reasoning.

Q. Now just to elucidate that, on the balance of probabilities, what is your opinion assuming the twenty allegations, assuming RM permitted [sic] those acts on the balance of probabilities in your opinion did he know right from wrong in committing those acts?

A. On the balance of probabilities I don't believe he knew or understood the consequences."

32 In cross examination, he conceded that he did not know, one way or the other, whether the applicant had received sexual education at the relevant time, but insisted that the applicant, more likely than not, did not fully appreciate at the time what constituted appropriate sexual behaviour. He was asked questions relating to the evidence of the complainant that the applicant had placed pillows or cushions over his lap and her lap when the incidents had taken place. He said (AB Vol 4, 788, lines 1-10):

"A. I have an opinion that in society children are taught that everything to do with sexual matters, sexual anatomy, is naughty. In my opinion it is entirely probable that he had an understanding that playing with sexual organs was naughty. That does not necessarily constitute right from wrong."

33 He was asked other questions which suggested that, on the basis of the complainant's evidence, the applicant had sought to distract her younger brother while he "played with" the complainant sexually. Did this suggest to him, the prosecutor asked, that the applicant may have had "some understanding" of the wrongness of the actions he was carrying out. He said

"... but I'm still of the opinion, given his psychometric results and his educational vocational achievements thus far, and his IQ falling almost in the moderate retarded range, that he is incapable of telling right from wrong at the standard you are suggesting."

34 Mr Rodriguez agreed with the trial judge at the end of his evidence that he had not given evidence in a court before on the issue of mental illness. He accepted that the expression of such an opinion in the court usually fell within the domain of psychiatric expertise. However, he said that he had, on a number of occasions, provided evidence on the defence of mental illness in the Mental Health Review Tribunal on the issue as to whether a forensic patient should remain in the community based on that patient's level of risk to the community.

35 As might be expected, the parties took opposing positions in relation to the medical evidence. The Crown argued that the evidence was sufficient to enable the trial judge to find that the applicant did know right from wrong. The applicant submitted that the opinions of Mr Rodriguez should be accepted on the issue, even though he was not a psychiatrist. Moreover, it was argued that Dr Nielssen's opinion was, in his own terminology, based on what he frankly conceded was "guess-work" in relation to the applicant's ability to know right from wrong at the time of the alleged misconduct towards the complainant.

36 Beyond these competing submissions however, the applicant, in support of the stay application, referred to a number of areas in which the passage of time had brought about a situation where the applicant was significantly prejudiced in relation to the mental illness issue. The matters on which reliance was placed included the death of AM, the applicant's father, and the unusual difficulties his mother had in her inability to recollect many matters that might have been of assistance to the applicant. In addition, there was the evidence to be gleaned from the affidavit of the applicant's solicitor, Pierre Hawach, sworn 1 August 2011. This showed that the medical notes kept by Dr Beaini, who had been the applicant's general practitioner at the time of the alleged incidents, were no longer available and Dr Beaini was now unable to provide any useful information because of the lapse of time. Another general practitioner who had been responsible for the applicant, Dr Tadros, had died. Attempts had been made to obtain other medical records from the earlier period of time, but none of these was available, despite diligent attempts to obtain them. Attempts to locate pupils and teachers who had known the applicant at the time were also completely unsuccessful.

The decision refusing the stay

37 The trial judge dealt with the stay application in two blocks. The first related to each of those matters that was said to go to the issue as to whether the offences had been committed. In this regard, her Honour examined each of the matters sought to be relied on by the applicant and gave careful consideration to the evidence that was said to be lacking and its likely impact on the issues in the special hearing. In relation to the computer issue, for example, her Honour said that the death of SM did not mean that evidence had been unavailable to the applicant. In this regard, she referred to the fact that the applicant's mother and sister had been able to give evidence on this issue. As to the fact that the donor of the computer was now deceased, she said that any disadvantage that arose could be dealt with by an appropriate direction recognising the forensic disadvantage thus accruing to the applicant. Her Honour said (AB Vol 1, 79):

"I do not consider that unfairness by reason of delay has been established and certainly not unfairness to a degree that would justify the extreme step of permanently staying the proceedings in respect of those counts [Counts 2 to 4] or, indeed, on the remaining counts on the indictment because of the relevance that the evidence may have in relation to an evaluation on those remaining counts."

38 Her Honour then considered each of the other matters in the table which I have set out above and, in relation to each of them, either individually or globally, her Honour acknowledged that, in some areas, the applicant was at a disadvantage and in other areas he was not. She instanced the shortcoming in the applicant's mother's evidence, but noted that this was compensated, to some degree, by the evidence given by the applicant's sister. Her Honour thought that even if the applicant's mother's memory problems "could properly be attributed to delay", there was no warrant for taking the extreme step of permanently staying the proceedings. As to the applicant's father, her Honour noted that generally there is a degree of speculation about what it might have been that the father could have addressed in his evidence, although she acknowledged that he may have been able to give evidence relevant to the mental capacity of the applicant. On the basis of the material before her, the trial judge concluded that the applicant's special hearing was not necessarily unfair by reason of the unavailability of the evidence of the appellant's father.

39 In relation to the issue as to prejudice on the mental illness issue, her Honour said:

"Mr McAuley accepts that the onus of proving this defence is on the accused on the balance of probabilities, but says he is deprived of effectively mounting such defence by reason of the delay which has resulted in an absence of evidence as to the accused's mental state at the time of the offences. ... It is that matter upon which the accused places principal reliance in support of the application for a permanent stay of proceedings."

40 Later (AB Vol 1, 87), her Honour said;

"It is the defence case on the stay application that the difficulty faced by the accused is highlighted by the evidence given by Dr Nielssen in the special hearing, particularly that he was really just guessing what the accused was like some twenty years ago (T 464). It was my view at the time Dr Nielssen gave this evidence that he clearly meant he was making an educated guess."

41 Her Honour then referred to information pertaining to the applicant's health and state of mind at the time of the incidents. This was a reference to the school records and the information the applicant's sister had been able to give to Dr Nielssen. Her Honour also noted that Dr Nielssen was able to have regard to evidence concerning the complainant's accounts of the accused's conduct in the commission of the offences. Her Honour then concluded (AB Vol 1, 88), for the reasons she gave, that the stay should not be granted on this ground. I shall refer to her Honour's detailed conclusion at a later point in this decision.

Resolution of grounds of appeal

42 It is convenient first to deal with Grounds 2.5 and 2.6 in the Amended Notice of Application for Leave to Appeal. There is an overlap between these two grounds and they may be summarised as follows: the applicant asserts that the trial judge applied an incorrect test, namely, whether the case was an extreme or singular or exceptional one, such that the continuation of proceedings would involve unacceptable injustice or unfairness. Her Honour ought to have applied the correct test, that is, whether the apprehended defect was of such a nature that nothing a trial judge could do in the conduct of the trial could relieve against its unfair consequences.

43 The trial judge dealt with the legal principles applicable to a stay in brief terms:

"[A] special hearing is to be conducted on the limited evidence available, but that does not mean an application of the present type is precluded ( Subramaniam v R (2004) 211 ALR 1, R v WRC (2003) 59 NSWLR 273, Agoston v R [2008] NSWCCA 116).

The power to grant a permanent stay of proceedings is, in essence, a power to refuse to exercise the jurisdiction conferred upon the Court. As such, the power is only to be exercised in exceptional cases ( Jago v District Court of New South Wales & Ors (1989) 168 CLR 23 per Mason CJ at 31, 34; per Brennan J at 50).

In determining whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, it is necessary to look at the evidence of actual prejudice in the conduct of the defence. Such evidence is to be considered in light of the powers of the trial judge to relieve against unfairness; such powers include: the giving of appropriate directions and warnings, rulings as to admission of evidence, and control of procedures of the court, generally. Regard must be had to the requirements of fairness to the accused, the legitimate public interest in the disposition of the charges of serious offences, and the need to maintain public confidence in the administration of justice ( R v RWO [2002] NSWCCA 133; R v Glennon (1992) 173 CLR 592 at 605; Jago per Mason CJ at 33, 34; per Brennan J at 47)."

44 Mr McAuley argued that her Honour's reference on a number of occasions to the fact that the power to stay should only be exercised "in exceptional cases", or in a situation where there was "unacceptable injustice or unfairness", postulated a wrong test. Similarly, where her Honour had spoken of the "extreme step of permanently staying proceedings", the same error, it was said, was revealed. Mr McAuley argued that the correct test to be applied was as stated by the High Court in Barton v R (1980) 147 CLR 75, Jago v District Court of NSW and more recently Dupas v R (2010) 241 CLR 237. Mr McAuley placed reliance on the following passage in Dupas (at 250) where the Court said:

"Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon , the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'."

45 In reading this passage, however, it is necessary to point out that the appellant there had sought to uphold the findings of Nettle and Ashley JJA that the case was "an extreme or singular case": 249 at [30]. The High Court was dealing principally with a contention that "the balance of authority in the High Court has approved a concept of unfairness such that it might arise irrespective of its source and whether or not it was controllable by Court processes": 249 at [30]. The particular matter at issue was the claim that the accused had been irredeemably harmed by circumstances of prejudicial media publicity so that he could not obtain a fair trial and was therefore entitled to a stay. The trial judge had taken the view, subsequently approved by the High Court, of giving extensive directions to the jury and, in those circumstances, declined to grant a stay.

46 At 251 [38], the Court said:

"The apprehended defect in the appellant's trial, namely unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity, was capable of being relieved against by the trial judge, in the conduct of the trial, by thorough and appropriate directions to the jury. Because that is so, it is not necessary for the purposes of this case to undertake any broad enquiry into the full extent of the Court's inherent power to grant a permanent stay of criminal proceedings in order to prevent unfairness to an accused. ... There was no error of principle in the application of Glennon by Cummins J in deciding that the appellant's trial, if allowed to proceed, would be fair. ... A stay permanently or until further order was not warranted."

47 The High Court endorsed the following statement by Mason CJ and Toohey J in Glennon :

"[A] permanent stay will only be ordered in an extreme case ( Jago v District Court ) and there must be a fundamental defect '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 R ). And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial."

48 I conclude, accordingly, that there is nothing in the High Court's decision in Dupas which casts any doubt on the accepted principles to be applied where a permanent stay is sought in a criminal trial, those tests being variously stated and discussed in Barton v R , Jago v District Court and R v Lennon . Dupas does not represent a departure from those well-established principles.

49 In Jago , Mason CJ said at [33]-[34]:

"The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. ... In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.

To justify a permanent stay of criminal proceedings, there must be 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 [76] per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'."

50 To like effect at p 50, Brennan J said:

"The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. ... If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence."

51 In Jago , at 77, Gaudron J said:

"The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding, as distinct from any broad consideration of the general merits of the case. ...

The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that 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 unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay."

52 Although the trial judge in the present matter referred to the relevant authorities, albeit briefly, and did not cite extensive extracts from them, it is quite clear, to my mind, that her Honour recognised the correct principles to be applied and, subject to the question of mental capacity discussed later, applied them appropriately to the task before her. I would reject the two grounds of appeal that suggest that her Honour has applied the wrong test to the question as to whether a permanent stay should be granted.

53 I should add that her Honour clearly recognised that a particular problem in the present matter was that there was not only an issue of delay but there were also the difficulties attending the fact that she had embarked on a special hearing following upon the procedures allowed for in the Mental Health (Forensic Provisions) Act . In that regard, her Honour referred (again briefly) to the relevant authorities that recognised the limitations inherent in such a special hearing, particularly those arising from the inability of the applicant to give proper instructions.

54 It is next convenient to consider Grounds 2.1, 2.3 and 2.4. These are inter-related and concern the major complaints of delay that were said to have prejudiced the applicant's position in relation to the issue as to whether he had committed the offences. The particular grounds focus on the fact that the occurrences occurred some twenty years ago, that the applicant is an intellectually handicapped person and was so at the time and, in particular, the death of the applicant's father, AM, and his uncle, SM.

55 The trial judge acknowledged the various matters of concern. They are those matters that are in brief referred to in the table set out in these reasons at para 17. These may be summarised as the computer room issue, the renovations to the complainant's family home, the absence of DOCS' records, the absence of details of the applicant's car ownership, the absence of records from the college at which Ms Horsley was a counsellor and the other matters set out earlier.

56 As I have recounted, the trial judge dealt with each of these in quite a detailed fashion. Her overall conclusion was that, particularly given her ability to direct herself on issues such as delay, prejudice and the like, the asserted prejudice did not rise to such a level as to warrant the extreme step of granting a permanent stay.

57 In my opinion, no error has been shown in relation to her Honour's dealings with any of these matters.

58 The computer room issue is a good example to demonstrate the correctness of her Honour's approach and conclusions. As has been explained, the issue is whether the complainant was correct in saying that the particular sexual incidents occurred in the computer room of the applicant's home in 1989. Behind this issue is the broader issue as to whether these incidents occurred at all. The applicant's family gave evidence that the computer was not brought to the household until about 1993 when it was given by SM, the applicant's uncle, as a present following the applicant's twenty-first birthday party. The computer room had originally been the bedroom of one of the applicant's sisters who had married at some time in 1992. The complaint about delay was that SM had died in Lebanon in 2008 and therefore he was not available as a witness to testify that he had in fact given the computer as a present to the applicant in 1993.

59 In dealing with this issue, the trial judge reminded herself that forensic disadvantages are not uncommon in cases such as this and are always the subject of a direction and warning to juries. Her Honour was well aware of the need to direct herself as to any particular forensic disadvantage that may have been suffered by the applicant. In addition to noting the forensic safeguard afforded to the applicant by the capacity to give warnings and directions, her Honour explained that evidence had been given by the applicant's mother and sister that was capable of proving, if accepted, that the computer had been given to the applicant some years after the year alleged by the complainant as the date of the incidents. To that extent, this evidence filled the gap arising from the unavailability of the deceased uncle.

60 There is no need for me to detail the manner in which her Honour has dealt with each of the other complaints on the issue as to whether the offences were committed. Her Honour was uncertain of the actual disadvantage relating to the dining room incidents at the complainant's home. She accepted that there may have been renovations, but was unclear as to the importance of that fact in the trial. Her Honour noted that, apart from the complainant, both her parents and her sister gave evidence. Her Honour noted that as it was their home, and as renovations were carried out while they were there, it might be assumed that they were able to give any relevant evidence on this issue. Yet no relevant questions were, apparently, directed to them in that regard.

61 The other matters such as the absence of detail about car ownership and other records which were unavailable were, as Mr McAuley fairly conceded, not particularly significant matters in themselves although he maintained that, in a global sense, they contributed to forensic disadvantage.

62 Her Honour paid particular attention to the apparent impaired memory of the mother of the applicant and to the death of the applicant's father, AM. In relation to the latter, her Honour noted that it was not alleged that he had witnessed any of the alleged sexual assaults. Undoubtedly he would have been at the home when the complainant was there. Moreover, her Honour concluded that it was "purely speculative" to endeavour to anticipate any area where his evidence might have been of some relevance. Her Honour accepted that he was the head of the household and handled the business dealings of the family, but she was not satisfied that his death presented any real unfairness, at least on the issue as to whether the offences were committed.

63 In his Amended Grounds of Appeal, the applicant lists under section 3 a number of matters which are said to detail the absence of witnesses or documents important to his case. Under the heading I have considered, I have left aside for the moment the issue about the absence of witnesses and documents relevant to the applicant's ability to tell right from wrong at the time of the alleged commission of the offences. I shall deal with those separately. For the moment, it is sufficient to say that in relation to all the remaining particulars in paragraph 3 of the Grounds, I am satisfied that the trial judge made no error in relation to her decision that none of these matters, either considered individually or globally, warranted the grant of a permanent stay.

64 Importantly, her Honour recognised that by the giving of appropriate directions and warnings to herself in case of any asserted forensic disadvantage due to delay, she would be able to avoid unfairness to the applicant. The existence of these procedures and powers had the consequence that a permanent stay was not warranted on the issue as to whether the offences had been committed. In relation to that issue, I reject Ground 4 that the cumulative effect of the matters listed in paragraph 3 of the Grounds was such that there was nothing the Judge could do in the conduct of the special hearing that could relieve against its unfair consequences. To the contrary, I accept that her Honour correctly identified her ability to ensure that the special hearing would be conducted fairly.

The issue as to whether the applicant knew right from wrong

65 The applicant sought to prove in the special hearing that if he were found to have committed any of the offences in the indictment, he should be found not guilty on the ground of mental illness. The applicant argued before the trial judge that he had suffered from a defect of reason at the relevant time arising from his disorder and that, as a consequence of his mental handicap, did not know that what he was doing was wrong, having regard to the everyday standards of reasonable people: R v Porter (1933) 55 CLR 182, 189-190; Stapleton v R (1952) 86 CLR 358 at 368 per Dixon CJ; Reg v S [1979] 2 NSWLR 1 at 42 per O'Brien J.

66 In relation to this issue, the applicant accepted that he bore the onus of establishing on the balance of probabilities that he did not know right from wrong at the time of the commission of the alleged offences. As the authorities make clear, this question falls to be decided in the light of the moral standards of reasonable people. Plainly enough, that reasonable person is someone with the moral judgment of an adult. A child's sense that particular behaviour might be naughty, so as to earn the disapproval of adults, would not meet that test. It is for this reason that the evidence of Mr Rodriguez, referred to at [32]-[33] may be regarded, if accepted, as significant.

67 This aspect of the applicant's case (in which he bore the onus) placed reliance primarily on the medical records and reports and, in particular, on the opinion expressed by Mr Rodriguez. The Crown placed reliance on the opinion of the only qualified psychiatrist called at the special hearing, Dr Nielssen. Mr McAuley had sought to deflect the force of Dr Nielssen's opinion by the concession he obtained during cross examination that the expert's opinion on this point was largely "guess-work".

68 The Crown, however, also placed reliance, it will be recalled, on a second body of material that suggested that the applicant had appreciated that his "misconduct" had been morally wrong. This included the complainant's evidence as to the apparent secretiveness and evasiveness engaged in by the applicant in carrying out a number of the indecent actions. It included the concessions the applicant had made during the intercepted conversation that what he had done (whatever it was) was wrong. Reliance was also placed on school reports and related matters that showed the applicant's ability to appreciate basic concepts of right and wrong and his ability to function relatively normally during his late teenage years. For example, he had been able to obtain a driver's licence and to drive a motor vehicle in accordance with the road rules.

69 It was against the background of these competing arguments that the applicant renewed his stay application before the present trial judge. Put simply, the argument was, as Mr Hawach's affidavit showed, that the passage of time, the death or unavailability of certain witnesses, and the inability to obtain relevant records placed the applicant at considerable disadvantage in proving the matter on which he carried the onus. Those people who might be expected to attest to his then inability to appreciate the difference between right and wrong were no longer available. For example, his father (who was clearly an important figure in his life), his treating doctors, his teachers and classmates. Records relating to (or possibly throwing light on) the issue were no longer available. Again, put simply, if the case he was attempting to mount on the mental illness issue was not as strong as it might have been, this was precisely because of the disadvantages he now encountered based on the twenty year delay. This was why the experts were reduced to "guess-work" and speculation.

70 The trial judge identified the issue in these terms (AB Vol 1, 85):

"In addition to these matters, it was contended that the significant delay in the case resulted in the accused suffering irremediable prejudice in terms of the defence of mental illness. In this regard, it is the accused's case that even if, after taking appropriate account of all matters raised on behalf of the accused including the forensic disadvantage suffered by reason of delay, I were to be satisfied beyond reasonable doubt that the accused committed any or all of the offences on the indictment, I would nevertheless find him not guilty by reason of mental illness. ... Mr McAuley accepts that the onus of proving this defence is on the accused on the balance of probabilities, but says he is deprived of effectively mounting such defence by reason of the delay which has resulted in the absence of evidence as to the accused's mental state at the time of the offences; that is when he was aged about eighteen to twenty-one years."

71 Her Honour then gave consideration to the material which was said to be absent. In particular, she gave consideration to the unsuccessful endeavours made by Mr Hawach to obtain material to assist the applicant on the mental condition issue to which I have earlier referred. Her Honour expressly took into account Mr McAuley's submission that the difficulty faced by the applicant was, as I have indicated earlier, "highlighted" by Dr Nielssen's reference to "guess-work". Her Honour said that it was her view that, at the time Dr Nielssen gave his evidence, he "clearly meant he was making an educated guess".

72 Having considered the applicant's submissions, her Honour then concluded that a stay should not be granted on this ground. In that regard, her Honour said (AB Vol 1, 87-88):

"It is not the case that there is no information pertaining to the accused's history in the time period of the charges. Police did obtain school records of the accused from 1989 and 1990 which were admitted as Exhibit A, and which were provided to Dr Nielssen (see also Mr Rodriguez at T504). Additionally, [the applicant's sister] provided information about her brother to Dr Nielssen. Dr Nielssen also had regard to evidence concerning the complainant's account of the accused's conduct in the commission of the offences. It is relevant to note, in terms of the ability to assess the accused's mental capacity at the time of the offences, mild mental retardation or intellectual disability is a lifelong condition, usually evident in early life (T462). Mr Rodriguez gave evidence of that factor (T507.38). In giving his opinion, Dr Nielssen took into account the fact that a person with an intellectual disability can mature and learn more social rules over time (T464).

In the whole of the circumstances, I am not persuaded that the absence of Dr Beaini's records, and the inability to obtain further medical reports as might have been available had the matters been brought immediately to the attention of police, or the inability to obtain information from the accused's former teachers and classmates, means that the special hearing would involve an unacceptable unfairness to as to justify the extreme step of permanently staying the proceedings.

As the High Court stated in The Queen v Edwards ([2009) 83 ALJR 717 at [31]), trials involve the reconstruction of events, and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair."

The argument in this Court

73 Before this Court, the arguments took a somewhat unusual path. Initially Mr McAuley argued that the applicant had been disadvantaged in the special hearing because he was unable, due to the passage of time, to locate and adduce historical evidence that may have thrown light on his ability to know right from wrong at the time of the alleged offences. This was the same argument as had been presented before the trial judge. However, this argument later broadened into an assertion that this Court should itself find persuasive the medical evidence adduced on behalf of the applicant, especially the evidence of Mr Rodriguez on the topic.

74 The Crown responded by arguing that there was a good deal of evidence before the trial judge bearing on the mental illness issue. This included the intercepted conversation, evidence of the complainant and members of her family, and the details of the school reports. In addition, the Crown asked this Court to place reliance on the ERISP even though it had been excluded in the special hearing. The Crown argued that the ERISP could be used on the issue as to whether the applicant knew right from wrong. She pointed to a number of occasions in the ERISP where the appellant admitted that he had been wrong in relation to his actions with the complainant. These were in similar terms to statements he had made to the complainant during the intercepted telephone conversation.

75 The Crown submission ultimately was that all this evidence (with the exception of the ERISP) had been before the trial judge. Consequently, she therefore had the capacity to make a decision on the mental illness issue without any difficulty. The reasoning appeared to be that it must follow that any disadvantage sustained by the applicant in obtaining evidence from the earlier period could not be significant because of the overwhelming nature of the available evidence to which I have made reference. Although not precisely articulated by the Crown, it may be that the reasoning extended to the proposition that the case advanced by the applicant on the mental illness issue was so weak or so deficient, having regard to the bulk of the evidence relied on by the Crown, that this Court could itself determine there was no warrant for a stay. As I have said, with no disrespect to the Crown, it was not entirely clear which of these arguments was being pursued.

76 Quite apart from the fact that the police interview was excluded at the special hearing, the ERISP itself poses a number of specific problems. Firstly, it occurred twenty years after the event. What insight could it throw on the applicant's mental state twenty years earlier? Secondly, although there are some clear admissions made by the applicant to suggest that he knew right from wrong (e.g. questions 836 to 838) there are other answers given which suggest that that realisation only came to him at a later period of time (questions 970 to 985). Indeed, in this section of the interview, the applicant plainly maintained that he did not know it was wrong at the time. Thirdly, there is the problem of a mentally handicapped person being interrogated by police officers who were, it seems, ignorant of his disabilities.

77 The admissions made by the applicant to the complainant and her family are also equivocal on the point. For example, the applicant is alleged to have told the complainant's sister (AB Vol 4, 733):

"He said 'Alright, I did it,'

And I said 'You did what?'

And I said 'Are you saying that you sexually abused [the complainant]?'

And he said 'Yes ...'

I said 'You're admitting that you sexually abused [her]?'

And he said 'Yes.'

'Well it's a very good thing that you're admitting it.'

And he said 'Yes, I did it. What do I do now? What happens now?'"

78 Variations of these statements were alleged to have been made to the complainant's mother and father. However, in each case the statements were made nineteen or twenty years after the incidents had occurred. In addition, they do not unequivocally illuminate the difficult question as to whether the applicant knew right or wrong at the time when the incidents were said to have occurred. Of course, they hardly assist the applicant but, in a real sense, they beg the central question in the special hearing.

Resolution

79 I confess that I am troubled by the direction the parties' arguments have taken on this issue. There are two reasons. First, this Court is invited, in effect, to make a finding on the whole of the evidence, including evidence that was excluded by the trial judge, as to whether the applicant knew right from wrong. At the very least, on the Crown argument, we are invited to reason that the applicant's case on the mental illness issue is bound to fail, or likely to fail, because of the preponderance of the Crown evidence, to which I have referred.

80 Secondly, I am concerned that these arguments, on both sides of the record, overlook the primary matter arising on the applicant's case for a stay: the proposition that the weakness in his position in the special hearing arises directly from the fact that there is no historical evidence (or at least very little) of a medical or objective kind to address the central point. This is precisely because of the passage of some twenty years or thereabouts. The applicant (with his disabilities) cannot attest to the situation. His father - who might be thought to be in an authoritative position to say something on the subject - is dead. There are no teachers or close friends or school mates who can assist. His treating doctors at the time are either unavailable or at least their records from that time are unavailable. His mother's evidence is unhelpful on most issues, for what reason, this Court is not to know. There was a muted suggestion during the leave application that the applicant's mother may have been prevaricating to assist her son, but no such suggestion, it appears, was made before the trial judge. It would be inappropriate for this Court to countenance such a finding, especially since an evaluation of the evidence on the mental illness issue is yet to be made. The appellant's younger sister is not a qualified medical expert and, in any event, her evidence did not address the question.

81 As to the first matter, I do not consider that it is this Court's task to make any finding as to whether the evidence establishes, or fails to establish, that the applicant did not know right from wrong at the time of the alleged commission of the offences. To express an opinion, even a tentative opinion on that subject, would prejudice the task confronting the trial judge. It is to be recalled that all the evidence has been completed. The submissions have concluded. The trial judge is now in a position to make findings on the limited evidence as to whether the offences were committed and as to whether the applicant has proven, on the balance of probabilities, that he did not know right from wrong at the relevant times. It would be quite wrong for this Court to cut across, anticipate or hint at any conclusion in those regards.

82 As to the second matter, it raises the question as to whether the reasons of the trial judge for refusing the stay on the mental illness issue demonstrate error.

83 What is not revealed in the Court's decision on the stay is whether critical consideration was given to the fact that, on this issue, the applicant bore the onus. In such a situation could there be a fair trial of the issue because of the limits on obtaining relevant material due to the passage of time?

84 It is one thing, of course, on the issue as to whether the offences were committed, to note a number of forensic disadvantages due to the passage if time. It is one thing to argue in a special hearing that the applicant's disabilities, coupled with the passage of time, may pose problems which, in extreme situations, might warrant a stay. For the reasons I have given earlier, I do not think that any error has been shown in relation to her Honour's refusal to grant a stay on either of those issues. Where the Crown bears the onus of proof and where the trial judge can give directions or warnings which caution against the use of evidence or point to the danger, due to unacceptable delay, of a finding adverse to the applicant, it may very well be accepted that a stay should not be granted, except in an extreme case.

85 Where, however, the onus falls squarely on the applicant and he is disadvantaged by the passage of time in the sense that he simply is unable to locate the evidence that might (if it existed) assist in the proof of the issue on the balance of probabilities, what then is the situation?

86 I have read her Honour's decision dealing with the proposed stay on the mental issue carefully. Her Honour correctly identified the issue but I do not see in her Honour's concluding remarks any reference to the onus point and the distinction it brings to the considerations that were brought to bear on the stay application relating to the commission of the offence issue. Of course, I accept that her Honour well understood that the onus fell upon the applicant to demonstrate that he had satisfied the mental illness test. There can be no doubt about that. However, I do not detect in her Honour's findings (or for that matter in the submissions that were made to her) a critical evaluation of this point. Indeed, her Honour refers to the passage in R v Edwards ((2009) 83 ALJR 717):

"The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter did not make the trial unfair."

87 But is that necessarily the case where the onus falls upon the applicant to prove the central issues at trial in circumstances where, because of the lapse of an exceedingly lengthy period of time, the evidence necessary to discharge that onus cannot be located? Edwards involved a prosecution under the Civil Aviation Act 1988 (Cth) where the onus of proof lay squarely on the prosecution. It was not, I would respectfully suggest, a compelling analogy for a trial in which the onus or the central issue lay on the accused.

88 I have reluctantly concluded that this issue (but no other) should be remitted to her Honour for further consideration. I bear in mind that in most criminal trials where mental illness is raised as an issue, psychiatrists usually have access to the accused's contemporaneous account of his state of mind. In this case, however, the only account by the accused is the evidence in his interviews from twenty years later, evidence which, in any event, has properly been excluded in the special hearing.

89 Accordingly, I would order that the application for leave be dismissed with the exception of the issue as to the accused's ability at the relevant time to tell right from wrong on that issue. I would grant leave on that issue and uphold the appeal to that limited extent. I would remit the matter to the trial judge for further consideration.

90 I am conscious of the fact that her Honour is, in effect, poised to give a decision and make findings as a consequence of the evidence in the special hearing. When her Honour reconsiders the limited issue remitted to her, she may either grant a stay or decline to do so. It will be entirely a matter for her Honour to determine the outcome of the stay application. If the decision happened to be adverse to the applicant, he would, of course, have the opportunity to seek leave to appeal from that decision on an interlocutory basis. Without derogating in any sense from that right, I would respectfully suggest, however, given the history of the matter, that it may be plainly desirable, in the overall interests of justice, that her Honour proceed to give a decision on the limited evidence without further delay. Of course, once again, that would be entirely a matter for her Honour. The point I am making, perhaps an obvious one, is that the parties to these proceedings would, in any event, each have rights available to them to protect their position whatever the ultimate outcome of the special hearing.

91 I propose the following orders:

(1) Leave to appeal granted on the limited basis as to whether stay should be granted in relation to the mental illness issue.

(2) In relation to that issue, the appeal is allowed and the matter remitted to the trial judge to consider afresh whether a stay should be granted.

(3) Otherwise, in relation to all other issues, leave is refused.

92 R.S. HULME J : I agree with Whealy JA.

93 I would add only this. I do not understand anything in his Honour's reasons to suggest that the fact that the onus of proving a matter lies on an accused means that whenever the accused can point to the prior existence of possibly or certainly relevant material and an inability to ascertain the detail of that material, a stay should be granted. To use the words of Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592 at 606, there must be a "serious risk" that the absence of the material has deprived the accused of a fair trial. Obviously relevant to the assessment of the extent of any risk is the nature and quality of the evidence that is available and which bears on the topic.

94 HIDDEN J: As noted by Whealy JA, the issue raised by the defence of mental illness in this case is that expressed by Dixon J in Porter (supra) at 189-90. Speaking of the accused in that case, his Honour said:

"We are not dealing with right or wrong in the abstract. The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. What is meant by 'wrong'? What is meant by wrong is wrong having regard to the everyday standards of reasonable people."

95 The question in the present case is whether delay has led to irremediable prejudice in the litigation of that issue, given that the applicant bears the burden of proof in respect of it. That is a matter properly to be remitted to her Honour for further consideration and, of course, I would not presume to express any view about it. I agree with the orders proposed by Whealy JA and with his Honour's reasons. I also agree with the approach to the matter suggested by his Honour at [90] of those reasons.

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Decision last updated: 19 March 2012