RC v Director of Public Prosecutions [2024] NSWCCA 95

RC v Director of Public Prosecutions [2024] NSWCCA 95 · Read the judgment on AustLII

Catchwords: Unfitness – suicide risk – permanent stay of proceedings – ‘common humanity’ test

With a large number of historical sexual offences now coming before the courts, the prospects of physical and cognitive impairments for defendants has become an increasing feature of trials. In this decision the Court of Criminal Appeal (‘CCA’) examined the so-called ‘common humanity’ test, noting that it is a test with no set criteria. To the extent that it may have been suggested that it sometimes involves a balancing of risks and their likely outcomes, that has been held not to be part of the test, and something more than a mere risk is required in order to get a permanent stay on this basis.

The applicant was charged with sexual offences said to have occurred between 1975 and 1983, relating to six children who had been under his care as a swimming instructor. By the time of trial, the applicant had a range of health conditions including terminal cancer and depression. He was also said to be experiencing shame and humiliation at a such a level that he was at risk of suicide if the hearing proceeded. In the District Court, a judge found him unfit to be tried because he would not be able to follow the course of the proceedings so as to understand what was going on in a general sense. As a result of that finding, a special hearing was required to consider the evidence and determine whether, on the limited evidence available, the offence was proven. Special hearings typically involve modifications to the usual trial process, so as to enable the unfit defendant to participate as far as possible, whilst allowing the hearing to proceed. Common examples include frequent breaks, or the defendant appearing by video from a care facility. However, ahead of the special hearing, the applicant sought a permanent stay of the proceedings on the ground that to proceed to hearing would offend what has come to be known as the ‘common humanity test’. A (different) District Court judge refused his application for a permanent stay. The applicant appealed that refusal to the CCA.

In a unanimous judgment, the Court (Basten AJA, N Adams and McNaughton JJ) referred back to the so-called ‘common humanity test’ stated by the High Court in Subramaniam v The Queen (2004) 79 ALJR 116 (‘Subramaniam’). Subramaniam held that the test is whether, in light of an applicant’s condition, it ‘would be out of accord with common humanity’ to allow the matter to proceed – although it was emphasised in that case that it was to proceed by way of a special hearing (at [31] of Subramaniam). Here, the CCA observed that the High Court in Subramaniam had stated a relevant test that requires an evaluative judgment with no precise criteria to guide it (at [25]). The reasons in Subramaniam had, at [35] of Subramaniam, gone on to hypothesise cases in which there is a real risk and the likely exacerbation grave. However, according to the CCA here, that part of Subramaniam did not state a ‘test’, but merely acknowledged that although the test stated at [31] of Subramaniam was not satisfied in that case, it might be in others (at [30] of this decision).

In the present case, the primary judge had considered, by way of analogy, cases relating to unacceptable injustice or unfairness arising from delay, resulting in forensic disadvantage – in particular, the decision of The Queen v Edwards (2009) 83 ALJR 717 at [23] (‘Edwards’). Edwards identified that the demonstrating that a mere ‘risk’ of unacceptable risk injustice or unfairness would be insufficient for a stay. Here, the primary judge was not wrong to apply the Edwards principles by analogy; inhumanity is readily seen as an example of unjustifiable oppression and thus abuse of process. In those circumstances, something more than a mere risk is required because of the nature of the balancing exercise and the need to establish that the determination of criminal of serious criminal activity cannot be allowed to proceed (at [32]).

In the particular circumstances of this application, which was mainly focused on the applicant’s mental condition and risks of suicide, the risks of suicide had been exaggerated. The proper inference was that those risks were the result of the likely shame and humiliation resulting from public exposure of the evidence against the applicant (at [35]-[36] and [50]-[57]). In all the circumstances, the stay was refused.