Justice For All Australians

On 5 June 2001, the applicant was convicted following a trial before a jury of three counts of indecent assault, six counts of unlawful sexual intercourse (with a person under the age of 12) and one count of offering a benefit to a witness. He was sentenced by her Honour Justice Nyland to a term of imprisonment for 25 years with a non-parole period of 18 years, each to commence 5 June 2001, the date the applicant was taken into custody on account of the offending.

On 31 January 2002, the Court of Criminal Appeal substituted a verdict of guilty of indecent assault for one of the guilty verdicts returned by the jury for unlawful sexual intercourse but otherwise dismissed the appeal against conviction. The applicant’s appeal against sentence also was dismissed. All orthodox avenues for appeal against conviction and sentence have been exhausted.

By two informations, each dated 1 September 2008, the applicant now stands charged in this court with further alleged offending. One information (DCCRM 1275 of 2008 – the "longer" information) charges the applicant with three counts of unlawful sexual intercourse with a person under 12, three counts of procuring an act of gross indecency, one count of unlawful sexual intercourse with a person under 17 and one count of indecent assault. These alleged offences are said to have occurred during the period December 1976 to December 1983. The second information (DCCRM 1274 of 2008 – the "shorter" information) alleges one count of indecent assault and one count of gross indecency, each said to have occurred between January 1969 and December 1970. Insofar as the longer information is concerned, the charges are said to be representative of a course of conduct involving a large number of uncharged criminal acts perpetrated by the applicant on each complainant.

The applicant has filed an application pursuant to Rule 8 of the District Court (Criminal and Miscellaneous) Rules 1992 seeking an order that both sets of proceedings be permanently stayed. The following written material was before the court on the hearing of the application:

Neither party sought to cross-examine the deponent of the affidavit or affidavits filed on behalf of the other. Matters of fact deposed to in the affidavit evidence of one party that were not conceded by the other were dealt with during submissions.

The applicant seeks a permanent stay of proceedings on the basis that should the trial proceed, he will not receive a fair trial and that to allow the matter to proceed would constitute an abuse of process. A stay is opposed by the Director of Public Prosecutions. The factors relied upon by the applicant as set out in the written outline of submissions filed on his behalf, are as follows.

This court has power to permanently stay criminal proceedings in circumstances where to continue with those proceedings would constitute an abuse of process. The power is either an implied power or an aspect of this court’s inherent jurisdiction to regulate its own processes.[1] The power to order a permanent stay is discretionary, to be exercised sparingly and only in exceptional or extreme cases.[2] The onus of satisfying the court of an abuse of process lies on the party alleging it and the onus is "a heavy one" to discharge.[3] However, the power to stay on grounds of an abuse of process extends to all categories and cases in which the process and procedures of the court which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness.[4] The power is not limited to cases where proceedings are instituted for an improper purpose or where there is no possibility of a fair trial.[5]

According to the joint judgment in Walton v Gardiner:[6]

An important public interest consideration, at least in this State, not expressly identified in the above passage, is the interest of victims and their families in having the person who has harmed them charged and prosecuted.[7]

In the present matter, the applicant submits that there are a number of factors which suggest that if a trial in this matter were to proceed, it would be accompanied by significant unfairness to the applicant. The applicant submits that each of these factors alone justifies a permanent stay but that, in any event, taken together, there is sufficient unfairness to the applicant as to overwhelm what should be characterised, in all of the circumstances, as only a limited public interest in continuing with the present prosecutions. In R v Ulman-Naruniec,[8] Bleby J,[9] after analysing the leading authorities in this area, described the balancing exercise necessarily involved, in a case such as the present, in the following terms.

A permanent stay based on an abuse of process is a remedy of last resort; there must be no other means available to bring about a fair trial.[10]

The offending alleged in the shorter information is said to have taken place between January 1969 and December 1970 at Seacliff. The two counts involve the same complainant. The timing and the circumstances of this alleged offending are quite different from that referable to the offending alleged in the longer information. The allegations in the longer information, like those underpinning the 2001 convictions, all concern a number of, then young, males who were members – "nippers" – of the surf lifesaving club with which the applicant was involved and who were, it is alleged, coached by the applicant during the course of their involvement in surf lifesaving. Whilst the names of the complainants differ, the circumstances surrounding the alleged offending and the nature of the allegations in each case are very similar to the allegations and circumstances underlying the offences of which the applicant was convicted in 2001.

However, the events giving rise to the 2001 convictions all occurred during a later time frame, between 1982 and 1986. It is this timing issue that explains why most, if not all, of the charges in the longer information were not also dealt with during the trial before Nyland J in 2001.

It is accepted that the only reason why the present charges, apart from the Seacliff allegations of 1969-1970, could not have been properly joined to the charges tried in 2001 is because they were statute barred at that time by reason of s76A of the Criminal Law Consolidation Act 1935. That section (since repealed) provided, in effect, that no information could be laid in respect of various sexual offences more than three years after the commission of the offence in question. Section 76A was repealed by Act number 98 of 1985 which took effect on 1 December 1985. The repeal was retrospective in its effect other than where the limitation period of three years had already expired as at 1 December 1985, R v Pinder.[11] In effect, allegations levelled against the applicant, arising out of events which occurred more than 3 years before 1 December 1985, could not have been prosecuted at the time the trial in 2001 was held. All, except two, of the counts charged in the longer information are particularised to have taken place prior to 1 December 1982 and were statute barred as at 2001. The fifth and sixth counts on the longer information particularise allegations as occurring between 1 January 1978 and 31 December 1983. I leave open the question, given the span of dates particularised for these two allegations, whether or not they also were statute barred as at 2001. It would appear to be common ground between the parties that they were.

Section 72A of the Criminal Law Consolidation Act was enacted by Act number 14 of 2003, operational on 17 June 2003. The effect of s72A is to abolish any time limitation for the prosecution of sex offences. It provides:

The proposed enactment of s72A and the complete abolition of any time limitation had been mooted for quite some time. Furthermore, it is common ground that the prosecuting authorities were on notice of the complaints made by all of the present complainants by no later than May 2001. The first declarations provided by the various complainants were as follows: DJM 11 April 2001, MM 30 March 1999, BM 30 March 1999, DD 11 May 2001 and DLC 4 May 2001.

However, the applicant was not "reported" on by the police to the Director in relation to the present allegations until 20 April 2006. A Magistrates Court information was filed on 7 November 2006. It was not until 1 August 2008 that the applicant was committed to stand trial in the District Court following which the two informations dated 1 September 2008 were filed in this court. The applicant still has not been arraigned in this court. In addition to this stay application which ordinarily must be heard before any arraignment,[12] there is also the prospect that an application might be made pursuant to Part 8A of the Criminal Law Consolidation Act for determination of whether or not the applicant is presently mentally unfit to stand trial on the current charges.[13]

Counsel for the Director offered an explanation for the delay between the lifting of the statutory bar on bringing proceedings as of 17 June 2003 and the "reporting" of the applicant by the police on 20 April 2006. I do not stay to attribute blame for the delays that have occurred in this matter. In my view, I do not have sufficient information before me to make sound findings as to where fault might lie for each of the many delays that have taken place in this matter. However, it is clear that the Director was on notice of a number of the additional complaints from as early as March 1999 and on notice of all of them by mid May 2001 and that the legislative bar to prosecuting additional charges against the applicant was lifted as from 17 June 2003. However, as at the time this application was heard, the applicant was still to be arraigned or proceedings under Part 8A of the Criminal Law Consolidation Act undertaken.

This stands in stark contrast to the circumstances surrounding the first trial. South Australian police investigations into the applicant and his activities commenced in March 1999.[14] However, by June 2001, a little over two years later, the applicant had been convicted at trial.

Furthermore, it is highly likely that any trial in this matter or any proceedings pursuant to Part 8A of the Criminal Law Consolidation Act will not be heard until some time in 2011. This will be at least 27 or so years after the latest of the dates particularised in the longer information, some 33 years after the earliest date there particularised and some 40 or so years after the dates particularised in the shorter information.

The applicant was born on 28 December 1944 and is now 65 years old. The 25 year prison term he is presently serving will expire on 4 June 2026, at which time he will be well into his 82nd year. The 18 year non-parole period to which the applicant is subject will expire on 4 June 2019 at which time he will be well into his 75th year.

Since 5 June 2001, the applicant has remained as an inmate in solitary confinement in G Division of the Yatala Labour Prison. The circumstances of his incarceration have been described in the McDonough affidavit of 22 June 2009 and in the Weir affidavit of 14 January 2010. The McDonough account has not been conceded in its entirety by the prosecution nor has the Weir account been conceded in its entirety by the applicant. Nevertheless, I am satisfied of the following matters.

Upon his admission to Yatala the applicant was placed in solitary confinement and under 24 hour observation, for his own safety and welfare. He sought and was granted protection status because of the nature of his offences and his previous position as a magistrate in this State. Since his incarceration on 5 June 2001, the applicant has been unable to mix with other prisoners because of his placement in G Division. A direction has been made pursuant to s36(2)(b) of the Correctional Services Act 1982 that he is to be kept separate and apart from all other prisoners until the direction is revoked. The direction was made in the interest of the safety and welfare of the applicant.

G Division is a special management unit used to house and manage prisoners who are unwilling or unable to conform to institutional rules, are a risk to themselves or others in the prison population or who are at risk from the general prison population. Many of the inmates are of violent disposition and/or are mentally ill and cannot be accommodated in the limited accommodation available in this State’s forensic mental health institutions. G Division is a restricted regime unit where the prisoners are required to be kept separate and apart from each other and, as such, access to facilities is limited.

The applicant is the divisional laundry worker and receives extra time out of his cell on a daily basis to enable him to perform his duties. He also has time out of his cell to enable access to the exercise yard and fresh air for at least one hour a day. In total the applicant has an average of seven hours a day out of his cell.

The applicant’s cell has dimensions of approximately three metres by two metres and has fixed furniture. There are no windows. The applicant is subject to high noise levels throughout the day and suffers from hyperacusis. For seven years, until June 2008, he was the subject of camera surveillance 24 hours per day because until then he had been perceived to be at risk of self harm. The applicant is allowed access to books and television whilst in his cell. However, of recent times he appears to have taken little advantage of this privilege. Visits are available on the weekends and public holidays. Any such visit is limited to 30 minutes and must be booked well in advance because of the limited nature of the facilities available to accommodate visitors. Any visitor is subject to camera surveillance and the prisoner must be strip searched, including an inspection of all body cavities, both before and after the visit. Nevertheless, apart from professional visitors (legal advisors, medical professionals and the like) the applicant has not had a visitor throughout his period of incarceration to date.

The applicant has no interaction of a social nature with any other prisoner. However, he does have some indirect contact when other inmates pass nearby the applicant whilst he is working in the laundry or when he is in his cell. He is consistently reviled by all prisoners with whom he has indirect contact and frequently is the subject of significant verbal abuse and intimidation including death threats. No other prisoner in this State has spent as much time in G Division as has the applicant.

It has been difficult for the applicant’s legal advisors to obtain his instructions, largely because of the logistical problems attendant on taking instructions from someone in G Division[15] and as a consequence of the applicant’s deteriorating psychiatric health and cognitive function.

The separation order made pursuant to s36 of the Correctional Services Act is reviewed on a weekly basis. The applicant is offered an opportunity to contribute to these reviews and usually signs the review. The support services provided to the applicant to enable him to adjust to his imprisonment include ongoing monthly social work contact, weekly visits by a prison chaplain and contact with the departmental psychologist. The latter occurred on a fortnightly and monthly basis between December 2004 and February 2008. However, that contact ceased in February 2008 as a result of the applicant’s unwillingness to actively participate in a respite plan or in treatment goals. Regular contact with the departmental social workers has continued.

There has been significant planning undertaken by the Department of Correctional Services with a view to re-integrating the applicant into a protection area within another, as yet undetermined, prison and this planning is continuing. However, the applicant has expressed anxiety about this and is resistant to it. As I understand it, the applicant is fearful of and resistant to any change in his circumstances that would involve regular contact with other prisoners.

The applicant has been examined and reported on by a number of professionals in connection with his psychological and psychiatric state.

Dr Craig Raeside, a forensic psychiatrist, provided a report on 16 May 2002 by which time the applicant had been in prison for a little under 12 months. He expressed significant concern about the effect a prolonged period of incarceration in G Division would have on the applicant’s future mental (and physical) health. He predicted that the applicant’s age, his lack of previous familiarity with custody and the ongoing threats of harm and general verbal abuse would make him significantly vulnerable to the adverse effects of segregation and solitary confinement. Dr Raeside reported that the applicant demonstrated a hyper-responsivity to external stimuli (such as sounds and smells) and, in particular, that he found almost intolerable the continuous loud noise, 24 hours a day, of the air-conditioning and exhaust fan within G Division. The applicant also reported and demonstrated difficulties with thinking, concentration and memory, together with a tendency to severe anxiety and agitation. Dr Raeside expressed the opinion that the applicant’s cognitive functioning was likely to decline further. He expressed the opinion that the applicant was "at considerable risk of a worsening of his mental state with more severe depression, anxiety, cognitive impairment and potentially psychotic breakdown", at least whilst he remained in G Division.

Dr Branson, a forensic psychiatrist, prepared a report dated 12 December 2008. He described the report as a "preliminary summary of my assessment". The report was obtained in the context of the issue then under consideration, being the applicant’s fitness to instruct his legal advisers and to stand trial.

Dr Branson expressed concern about the applicant’s general level of cognitive functioning at the time that he reviewed him. Following an interview and some testing, Dr Branson concluded that the applicant’s concentration was "well below average and definitely below that which would have once been the case for him". He observed that the applicant was very significantly distracted by the extraneous noise in G Division which Dr Branson found surprising given the applicant’s familiarity with his environment for over seven years. Dr Branson expressed very significant concerns about the applicant’s ability to instruct and follow the evidence in the course of a trial. He recommended that a formal neuro-psychological opinion as to the applicant’s cognitive capacity and with regard to his fitness to stand trial be obtained.

Mr Andrew Rothwell, a clinical neuro-psychologist, provided a report dated 6 April 2009. Mr Rothwell engaged in cognitive testing and concluded that the applicant’s results were well below pre-morbid expectations and commensurate with his clinical presentation. In Mr Rothwell’s view the applicant had an understanding of the court process but "his higher level thinking is clearly impaired". According to Mr　Rothwell the applicant had many symptoms of the sensory deprivation syndrome described in Dr Raeside’s report and the applicant presented as Dr Raeside had predicted in his report of May 2002. Mr Rothwell raised the possibility that the applicant suffered from "dementia syndrome of depression". This can be considered as a temporary condition, although it comes with very real cognitive impairment. After treatment for or resolution of the depression, a close to full return of cognition can be expected. According to Mr Rothwell, because the applicant’s life circumstances, such as they are, are likely to continue for many more years, any depressive dementia is likely to remain, if not worsen. Mr Rothwell expressed doubts as to the applicant’s ability to assist or instruct his legal advisors and adequately participate in the legal process given his perceived emotional state and cognitive impairment.

Dr Branson prepared a further report dated 7 May 2009 after having reviewed Mr Rothwell’s report. Dr Branson described his second report as "a more comprehensive summary of [his interview of the applicant on 9 December 2008, prior to preparation of his first report] and of my opinion".

The applicant had told Dr Branson that he had a strong desire not to be found unfit to stand trial partly because of his worries about his 92 year old mother but also because he wanted to be able to defend himself against the charges. Dr Branson, in his second report, expressed concerns about the applicant’s cognitive function principally to do with memory and concentration issues and the slow speed with which the applicant appeared to process information and to answer questions. According to Dr Branson, an assessment of the applicant’s mental state was difficult because of the "extraordinary circumstances" in which he had been confined for the seven years prior to the preparation of the report. Dr Branson found the applicant to be suffering from the symptoms of depression and anxiety and observed this was hardly surprising. He also found the applicant to be suffering from a dementia like process that could only be considered to be a result of his prolonged solitary confinement.

Dr Branson was of the view, at the time of writing his May 2009 report, that it would be very difficult to obtain coherent instructions from the applicant and that he would have "almost no chance of following a normal course of a trial".

The medical evidence presently available does raise a concern as to whether or not the applicant is fit to stand trial. However, I accept the parties’ joint submission that this evidence is insufficient to support an application under s269H of the Criminal Law Consolidation Act for a finding that the applicant is mentally unfit to stand trial on the present charges. In any event, no such application either by the applicant or the Director is before the court and, given the intimation expressed by the applicant to Dr Branson on this topic, it remains an open question as to whether or not an application would be made, in the future, by the applicant’s legal advisors. It might be open to the court to act of its own motion pursuant to s 269J(2)(b) of the Crminal Law Consolidation Act in the event of circumstances as envisaged in Eastman v R.[16]

The question arises as to the extent, if at all, that my findings concerning the state of the applicant’s health and, in particular, the state of his psychiatric health and findings concerning the state of his cognitive abilities, are relevant to the question of a stay.

R v Abdulla[17] concerned a deaf, mute and illiterate accused charged with serious sexual offending. He did not suffer from any mental illness but it was common ground that he was unfit to plead. The Court of Criminal Appeal, by majority,[18] held that Part 8A of the Criminal Law Consolidation Act applied and that there was no discretion to stay the proceedings at common law. The majority[19] rejected the submission that, even if the appellant fell within the terms of s269H and was not mentally fit to be tried, a stay should be granted because the appellant could not give instructions in relation to any trial of the objective elements of the offences. Besanko J said:

Debelle J, who dissented, held that Part 8A, on its proper construction, did not apply and that the matter should be determined in accordance with the common law regulating the granting of a stay of proceedings for abuse of process.

According to Duggan J (with whose reasons Mathison and Nyland JJ agreed) in Question of Law Reserved (No. 1 of 1997),[20] Part 8A provides a code for dealing with the issues of mental competence to commit an offence and mental fitness to stand trial, although its interpretation cannot be divorced entirely from the prior common law on this topic.[21]

The present case is distinguishable because, unlike in Abdulla, there has been no finding or concession that the applicant is unfit to plead. That issue has not yet been formally raised nor dealt with. Section 269I of the Criminal Law Consolidation Act provides that a person’s mental fitness to stand trial is to be presumed unless it is established, on an investigation under Division 3 of Part 8A, that the person is mentally unfit to stand trial.

The interface between the common law of abuse of process and statutory regimes dealing with fitness to plead has been considered by at least two other intermediate courts of appeal.

The New South Wales Court of Criminal Appeal in R v WRC[22] held that whilst the relevant legislation in NSW[23] contains a carefully constructed and comprehensive scheme for determining issues of fitness to be tried, it is not exclusive and does not exclude the implied jurisdiction of a superior court to control its own processes, in particular, its power to control an abuse of process.[24]

Spigelman CJ, speaking on behalf of the court, said this:[25]

In reaching this conclusion, Spigelman CJ had regard to certain observations and findings by Gray J speaking on behalf of the Court of Criminal Appeal for this State in R v Sexton.[26]

In Sexton, the Court of Criminal Appeal refused to accept the proposition that an analogous Commonwealth provision, s20B of the Crimes Act 1914, effectively ousted the operation of the common law inherent powers of the court to grant a permanent stay on the ground of existing unfitness to be tried.[27] Gray J said this.[28]

His Honour went on to say:[29]

As I have indicated, the issue before me is not one of fitness to stand trial. However, the issue of the applicant’s mental health and cognitive abilities has been placed before the court in combination with matters not within the scope of Part 8A and in the context of an alleged abuse of the processes of the court, to adopt the phrasing of Spigelman CJ in R v WRC. [30] The evidence and my findings concerning the applicant’s psychiatric health and cognitive abilities remain relevant. They add weight to any consideration of evidentiary prejudice that has been caused by the delay. On the present assumption that the accused is fit to plead, [31] and when considering the extent to which the delay in this matter has caused the accused evidentiary prejudice, the fact that a decline in psychiatric health and cognitive abilities has accompanied this delay is a relevant consideration. In addition, the state of the accused psychiatric health and cognitive abilities, during the period following his being charged, is of itself, a relevant consideration in this context.

Furthermore, in practical terms there is no mental element to the charges facing the applicant. Even if a Part 8A application were to be successful, the subsequent trial of the objective elements, whether before a jury or judge alone, would not differ in practical terms from a full trial on the merits. The outcome would be different in the event of a finding that the objective elements had been proved. Whilst a formal not guilty verdict would be entered, the applicant would be declared liable to supervision for a limiting term equivalent to the period of imprisonment which in the court’s opinion would have been appropriate had he been convicted.[32] The present application for a stay contemplates a stay of all proceedings in the matter including any prospective Part 8A enquiry.

The applicant has been the subject of or referred to in a substantial amount of publicity from shortly after his conviction in 2001 and until very recently. A large number of extracts from this publicity, although by no means all, were tendered.

Exhibit CBN2 to the affidavit of Christopher McDonough sworn 21 January 2010 is a compact disk. It contains a summary of approximately 400 electronic media publications referring to the applicant between 10 February 2003 and 6 October 2009. All, but for 11 or so, were published within Adelaide. During the 20 months or so, between February 2008 and early October 2009 approximately 100 separate publications are reproduced in exhibit CBN2. Whilst there has been an average of more than one publication per week throughout the period from 2003 to 2009, it is recognised that the publications have come in ‘clumps’ because the same story was often run a number of times on a particular day through different media outlets. Thus, it is not appropriate to infer that at least one story about the applicant has occurred each week throughout that period.

The electronic publishers include, various presenters at various times throughout the day, including the evenings, at the radio station 5AA, including in particular Mr　Bob Francis and Mr Paul Makin; various presenters at various times throughout the day on a number of ABC stations including, 891 Mornings with Mr Matthew Abraham and Mr David Bevin and 891 Drive Time; a number of the television news services at various times throughout the day including, that of Channel 7, Channel 9, Channel 10, ABC and Sky TV; Channel 7’s Today Tonight programme and presenters at various other radio stations broadcasting in Adelaide.

I also have reviewed a large number of transcripts or extracts from transcripts of media publications, both in electronic and print format, published between 2001 to 2009, as contained in exhibits VDD1 (CBM1 of McDonough affidavit of 21 January 2010), VDD2 (2 Parts), exhibit CBM1 to the McDonough affidavit of 21 January 2010 and accompanying an email from the applicant’s solicitors to my chambers dated 28 January 2010.

The media treatments range across many topics, including general observations concerning the state of investigation into child sex offenders generally in South Australia with reference to the applicant (often referred to as ‘former magistrate Peter 　Liddy　’ or ‘disgraced magistrate Peter 　Liddy　’ or ‘disgraced paedophile Peter 　Liddy　’) and his convictions for child sex offences; allegations of corruption in South Australia including reference to alleged misappropriations of the applicant’s assets and difficulties his victims have been experiencing in obtaining compensation and direct discussions of the applicant’s convictions for child sex crimes and the circumstances of that offending as revealed in the publicity following the trial in 2001.

Much of the commentary, insofar as it directly refers to the applicant, is strident, vitriolic and extremely condemnatory. The applicant frequently, but more so in the earlier years, has been demonised and vilified as a predatory paedophile who used his position as a magistrate and a member of a surf life saving club to prey upon and sexually abuse child victims.

Over the last few years, much of the electronic media has focused on the ongoing issues concerning the availability of the applicant’s assets rather than the details of the offending itself. However, there is a sense that the media who appear to be most involved, 5AA and Channel 7, no longer see a need to give chapter and verse of the background to this issue. It would appear that often the more recent publications refer to ‘Peter 　Liddy　’ or ‘disgraced paedophile Peter 　Liddy　’, or ‘disgraced magistrate Peter 　Liddy　’ on the assumption that regular listeners are fully aware of the background or that particular media outlet’s take on that background. As late as 8 May 2008, one media commentator expressed on radio a wish that somebody would kill Peter 　Liddy　 "the smart arse paedophile" in Yatala.

The applicant was committed for trial in this court on 1 August 2008 and a suppression order made in the Magistrate’s Court on the same day. That suppression order was revoked in this court on 1 September 2008. Since the lifting of the suppression order there have been frequent references in the media to the possibility that the applicant may not stand trial for the additional alleged child sex offences because of mental fitness concerns.

I am satisfied that, in general, there has been sustained and intense media interest in the applicant, his prior convictions and the nature of his predatory activities. The Director does not demur from this although counsel submitted that the extent and nature of the publicity was not such as to warrant a stay. There is no evidence before the court as to the ratings or number of listeners/readers enjoyed by any particular media program or publication, particularly those that appear to have been the most constant observers and prolific commentators over the years. Nevertheless, I am also satisfied that the name Peter 　Liddy　 has entered the lexicon of media outlets and a significant proportion of the public as a well understood reference to the worst of convicted paedophile offenders in the same way that the name (Bevin Spencer) von Einem has come to evoke the worst of child murderers.

I am satisfied that the name Peter 　Liddy　, the fact that he was a magistrate, the fact that he was convicted some years ago for serious child sex offences which occurred decades previously and is serving a lengthy prison term and the fact that his modus operandi included grooming young boys who were involved with him in the surf life saving movement, is known to a significant proportion of the Adelaide population.

I have already made certain findings as to the extent and nature of the publicity dealing with events concerning the applicant over the past nine years or so.

Publicity of this nature and relating to offending of a similar character, together with an analysis of the relevant authorities, has been dealt with recently by the Queensland Court of Appeal in R v Ferguson; ex parte Attorney General(Qld)[33] and by the South Australian Court of Criminal Appeal in a judgment delivered 25 May 2010 which remains suppressed. Insofar as comparisons can be made given the limited primary material available, the distracting and prejudicial nature of and the extent of the material published in the present case raises concerns about the potential unfairness of any ensuing trial which are, at least, as serious as those considered in Ferguson and recently by the South Australian Court of Criminal Appeal. In both of these matters a stay based on prejudicial pre-trial publicity was refused.

The starting point when considering the potential effect of pre-trial publicity, at least as a stand alone basis for a stay of proceedings, is the observations of Mason CJ and Toohey J in R v Glennon.[34] Those observations included the following (citations omitted).

In the same case Brennan J[35] (with whom Dawson J[36] agreed) said the following (citations omitted).

The issue of pre-trial publicity was revisited by the South Australian Court of Criminal Appeal in R v McGee and McGee.[37] Doyle, CJ said[38] the following (citations omitted).

With these considerations in mind, I must assess whether, because of the effect of the publicity that has been generated in this matter, there has arisen "an unacceptable and significant risk" that a fair trial is precluded. In the present case, the following additional considerations arise.

First, it is likely that one or more members of any jury selected to serve at a trial of the longer information soon would become aware that the case to be presented by the Crown is, to all intents and purposes, the same case that was presented at the first trial but with different complainants. The allegations as to the conduct of the applicant about which a jury would hear evidence will be, in essence, the same as the allegations made and accepted by the jury in the first trial. In this respect, the situation is slightly different, to my mind, from that in most other cases that have dealt with pre-trial publicity about notorious criminals. In the present case, it is likely that the jury will become aware that the applicant is being tried for the very same conduct involving multiple young boys and in materially the same circumstances as those which underpinned his previous convictions. I accept that the accounts given by the present complainants will be separate from the accounts given by the complainants in the first trial and will specify different and additional acts of abuse which, if accepted, will establish additional and separate sexual offences. However, there may well be a tendency for a juror or jurors to reason along the lines that they are hearing an account of the same events for which the applicant has already been convicted and imprisoned but with additional complainants involved.

In other words there is a likelihood that the jury will start with knowledge that the applicant is not simply a convicted paedophile but that he has already, in effect, been convicted in connection with some of the very events they are to hear about. In this respect, I am conscious of the need to ensure that an acceptance of considerations of this nature does not give rise to the situation where notorious criminals can commit further offences with impunity on the basis that their notoriety will operate to provide immunity from prosecution.[39]

A second consideration is the extent to which, when assessing whether or not pre-trial publicity would give rise to an unacceptable and significant risk that a fair trial is precluded, I should have regard to the right available to an applicant in this state to elect for a trial by judge alone. This was but one consideration taken into account by Duggan J in R v von Einem[40] when refusing a stay in that case. His Honour said this.

A third consideration arises in the following way. The applicant was convicted of the initial offences on 5 June 2001. His appeal against conviction was dismissed on 31 January 2002.[41] Thereafter and if not from before, the media had a relatively free rein to comment on the applicant and on his convictions. At that time there was no prospect that the applicant might be charged with any further alleged offending. It was not until 17 June 2003, that the Director of Public Prosecutions became entitled to bring further charges against the applicant and it was not until 28 April 2006 that the applicant was reported on by the police. As such, the statutory removal of the immunity from prosecution that was in place prior 17 June 2003 has given rise to the following potential consequences:

I am satisfied that the potential for prejudice caused by the publicity in this matter, is likely to be very considerable. However, it is unlikely that, standing alone, it would be such as to give rise to an unacceptable and significant risk that a fair trial is precluded. As I have earlier indicated, the extent of the publicity, insofar as it provides detailed accounts of the conduct of the applicant upon which the initial convictions were based, has waned over the last year or two at least, and there is no reason to think that this will not continue during the period until any trial. I also must take account of the means available to a trial judge to ensure that any jury to be empanelled, is vetted before empanelling and to remind and direct the jury about the importance of bringing an objective mind to the case and to concern themselves only with the evidence as presented.[42] A court usually is justified in placing considerable confidence in the modern juror’s ability to assess evidence critically and to comprehend and act upon directions to reach conclusions upon the evidence alone.[43] Without finally deciding this issue, if pre-trial publicity had been the only basis relied on by the applicant, it is unlikely that I would have granted a stay of proceedings.

The chronology of this matter demonstrates that there will be a substantial delay between the events alleged in the shorter information and the events alleged in the longer information and any trial or trials of the applicant (40 years and 27 to 33 years, respectively). However, the authorities consistently reiterate the proposition that delay, even extraordinary delay, does not of itself amount to an abuse of process and that there must be other factors which would render the continuation of the proceedings unfair or oppressive. In this context Mason CJ in Jago v District Court of New South Wales[44] is often cited.

In that same case Deane J[45] said this.

The issue of delay formed one basis for the unsuccessful application before Nyland J for a stay of the proceedings leading to the applicant’s conviction in 2001. The offences then under consideration were alleged to have taken place between 1983 and 1986 but, according to Nyland J, there was a delay up to 18 years before complaints were made to the police.[46] Her Honour refused to grant a stay and in so doing observed as follows.[47]

It would be of little assistance to consider in any detail the reasons for her Honour’s decision to refuse a stay in 2001. The evidentiary basis for that application differed from that of the present application. In this respect, her Honour did have before her specific examples of enquiries, potentially relevant to the applicant’s defence to particular allegations, which enquiries could not adequately be made. No specific examples of a similar nature have been provided to the court in the present application. This is not particularly surprising given the decline in the applicant’s cognitive abilities and the additional passing of time.

The argument before me, at least in so far as it referred to the question of delay, was put at a more general and conceptual level. However, that is not to say that evidentiary prejudice impinging on the applicant’s capacity to prepare a defence to the allegations now put against him, at least insofar as this capacity is dependent on the applicant’s memory, cannot be inferred from the circumstances of the matter generally.[48]

Another point of difference with respect to the application for a stay heard by Nyland J, is that the present application relates to alleged offending earlier in time and a proposed trial or trials that will take place some ten or more years after the trial that was heard before Nyland J. In other words, the delays in this matter are significantly greater than those Nyland J faced.

The applicant has identified a number of areas of prejudice said to result from the delays in this matter including the following.

The applicant has and will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving children as young as eight or nine years of age. These problems include:

However, these problems confront any accused person who wishes to defend historical child sex allegations and, as Nyland J observed, are inevitable where there is significant delay in bringing prosecutions. Her Honour did not see these sorts of problems, in the circumstances that were before her, as being unusual or exceptional and they were not sufficient to move Her Honour in 2001. Furthermore, Parliament in deciding to lift the statutory immunity must have recognised that these sorts of problems inevitably would confront an accused charged, after June 2003, with historical sex offences. It was left to the courts to decide, on a case by case basis, whether or not prejudice caused by the delay was sufficient to found a stay.

The applicant submitted that these inevitable consequences caused by the delay have been exacerbated in this case because of the nature and complexity of the allegations confronting the applicant. Counsel submitted that the applicant was faced with general, unparticularised allegations about activities over long periods of time. The prosecution case with respect to each of the complainants in the longer information is that the applicant engaged in a lengthy and somewhat constant course of conduct. Whilst the applicant faces eight charges, they are said to be representative of hundreds of uncharged acts. Neither the information nor the complainant statements particularise, in any detail, the occasions of either the charged offences or the uncharged acts. This is understandable given the nature of the Crown case and given the period of time that has elapsed. However, the charges can be regarded as "complex" in the sense that Deane J spoke of in Jago.[49] Counsel submitted that the conduct alleged against the applicant is broad and undefined which makes it difficult for the applicant to be able to identify the dates and locations when particular acts are said to have occurred, which in turn presents difficulties for him if he were to attempt to prove that a particular act did not happen or he was not at the location at the time. Whilst this is inherent in the nature of these proceedings, it has been compounded by the extensive delays in this matter.

Counsel for the applicant also drew attention to the enormous number of uncharged acts referred to by a number of the complainants. One complainant in his statement asserts that "he fondled [the applicant’s] penis on hundreds of occasions" and that there was "impropriety at the beach 150 times". By way of further example, another alleges penis fondling "100-300 times" and getting into bed most mornings, "100 to 200 occasions". These are just examples of many such allegations of constant and repeated sexual abuse. Counsel for the applicant submitted that the uncharged acts as alleged by MM and PM, "hundreds and hundreds of times collectively between the two of them", could be seen, on their face, to indicate or suggest impossibility and therefore falsity. In these situations the inability of the applicant to produce records such as a personal diary or a magistrate’s work roster to support a defence that these events could not have occurred has been severely compromised by delay.

At least one of the complainants has alleged that many acts of abuse occurred in the applicant’s chambers at court when the court was functioning. Counsel submitted that the ability to challenge such claims by cross-examining with respect to the layout of the court or the people at the court or the business that was being conducted by the court has inevitably, been lost. None of the courts referred to in the declarations now exist or operate apart from the Adelaide Magistrate’s Court which has since been completely rebuilt.

I am satisfied that the potential for evidentiary prejudice caused to the applicant by the delays in this matter is significant. The number and complexity of the allegations both charged and uncharged in this matter, and the fact that they occurred so long ago and over a lengthy time frame all suggests a potential for evidence, that might otherwise have assisted in casting a reasonable doubt on aspects of the prosecution case, to have become unavailable for whatever reason.

In addition, I accept that the passage of such a long period of time will mean that the applicant inevitably will face significant difficulty in being able to recall where he was and what he was doing at critical times and in particularising any challenge to allegations brought against him over and above a bare denial. I also accept, in the present case, that the difficulty just mentioned has been exacerbated by the delay in this matter between 2003 to date, for the reason that the applicant’s psychiatric state and cognitive functioning have deteriorated significantly over that period. I accept the submission of counsel for the applicant that had the applicant been charged in June 2003, rather than some three years later in the middle or second half of 2006, the applicant would have been in a better position to and better able to instruct his lawyers as to matters of defence than has been the case since middle to late 2006.

I accept that the applicant’s psychiatric health and level of cognitive functioning and therefore his ability to properly instruct his legal advisors and participate in any trial has diminished significantly since having been taken into custody and that such diminution is unlikely to improve by the time of any trial in this matter. Whilst this has not been directly caused by the delays in this matter, it is a by-product of the applicant’s circumstances during the seven years of delay from June 2003 when the statutory prohibition was lifted.

Finally, in this respect, I am satisfied that the extent of the delay in bringing to trial the matters alleged in the two informations before me is, in each case, significantly greater than the delay that confronted Nyland J and that the prejudicial consequences of the delay are likely to be significantly greater than those that confronted Nyland J. Although I also accept that these consequences might be alleviated, to some degree, by giving strong and appropriate warnings to any jury empanelled about the effects of this delay upon the applicant and the applicant’s capacity to properly defend the allegations.

In considering the impact of the delay in this matter and the question of whether the lapse of time is such that any trial would necessarily be unfair and any conviction would bring the administration of justice into disrepute[50], I also must have regard to matters raised in the context of my discussion of the publicity issue. Had the matters in the longer and the shorter information been dealt with at the time of the 2001 trial or shortly thereafter, that jury or juries would not have been confronted with knowledge that the applicant had already been convicted of a course of paedophilic conduct arising out of the same circumstances that were to be put before them and the defence would not have had to contend with the level of vilifying and condemnatory publicity that has in fact taken place over the last eight or nine years. In other words, these prejudicial features are a result of or have been exacerbated by the delays in this matter and to some extent have been caused by or contributed to by the existence of the statutory immunity that was in place prior to June 2003 and its removal.

In considering whether or not to grant a permanent stay of criminal proceedings the court must undertake a weighing process. I return to the guiding proposition set out in the joint judgment in Walton v Gardiner.[51]

As previously indicated this balancing exercise has been described in other terms by the Court of Criminal Appeal in this state.[52]

The "balancing exercise" referred to in the authorities must be given work to do. If the potential or likely unfairness from the applicant’s perspective is sufficient on its own to call for a stay there would be little, if any, need to consider the other side of the ledger, that is, the public interest in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice. However, in the event that there is a level of perceived unfairness falling short of that which, on its own, would suggest an abuse of process and demand a stay, the nature and extent of that perceived unfairness is to be weighed against the public interest in an effort to determine whether or not a continuation of the prosecution, as Bleby J has put it, "will lead to oppression and injustice and is thus inconsistent with the recognised purposes of the administration of criminal justice".

The public interest in the disposition of charges of serious criminal offences is manifest. However, there are a number of considerations relevant to the present two sets of proceedings that suggest that this public interest is less, perhaps significantly less, than is ordinarily the case.

The applicant is a convicted sex offender, and insofar as sex offenders in this State are concerned, he is notorious. It is notorious that he made use of his position as a magistrate and as a member of a surf life saving club to prey upon and groom numerous young males for his own prurient sexual purposes. His conduct, the fact that he lived a double life and the effect his criminal behaviour has had on his victims, has been well documented as part of the 2001 trial process and the ensuing publicity. Whilst the longer information relates to different complainants, much of the conduct alleged in that information or at least an extensive course of conduct of the same nature and gravity has already been proven in a court of law. The allegations in the shorter information, without in any way diminishing their gravity, would seem to add little to that which is already well known about the applicant, apart from the fact that his sexual abuse of young boys may well have started many years earlier than first thought.

It is essential to the maintenance of public confidence in the administration of justice that persons "in high places" who commit crimes, particularly crimes involving sexual abuse, should be exposed and brought to justice. In this case, it cannot be said that the "system" or the legal profession or the government has looked after one of its own. The applicant was assiduously pursued by the prosecuting authorities at the time he was serving as a magistrate. In this respect, as far as this case is concerned, the public can have confidence in the administration of justice.

There is a public interest in the victims of serious offences having the opportunity to present their allegations in court and to be publically vindicated. As a matter of justice, it is important that accusers have the right to have their allegations presented, tested and ultimately, where appropriate, accepted in an open court. In addition, although I have no evidence about and I am in no position to make any findings in this next respect, where crimes of sexual abuse are concerned there may well be a significant therapeutic benefit and a sense of closure for the victims concerned which, of itself, can be in the public interest.

It is true that the complainants here gave evidence in the committal proceedings. Their evidence in chief was given by declaration following which they were cross-examined. In this, limited sense, the complainants have been afforded an opportunity to publically ventilate the wrongs they say were done to them. In addition, some of the complainants did give evidence in support of the crown case during the 2001 trial. However, their evidence did not canvass their own allegations of abuse. I place little weight on these considerations. Cross-examination during a committal process and the opportunity to give evidence in 2001 of this limited nature pale in significance when compared with a public trial in this court and a final determination as to the accuracy or otherwise of each particular complainant’s allegations. The fact that these complainants have not had their day in this court before a judge and jury or a judge sitting alone is an important consideration when determining whether or not to grant a stay in this matter.

Another consideration, although again one that, by its nature, can only be accorded very limited weight, is the fact that a trial in this matter, at least with respect to the longer information, is likely to take in the order of four to six weeks. There are in the order of 35 witnesses noted on the back of the information and there may be defence witnesses and there may be preliminary argument. Given the number of the charges and the extent and nature of the course of conduct alleged, four to six weeks does not seem unrealistic. Of course, all criminal trials consume public resources; that is the very nature of the exercise and is to be expected. However, in a case where it might be perceived that there is less than usual public interest in pursuing a matter, the impact on already strained court and public resources is also a consideration, albeit a minor one in all of the circumstances.

A further, and significant, consideration in this context, arises from the fact that the applicant is already serving a sentence of 25 years imprisonment with a non-parole period of 18 years. The applicant will not be eligible for parole until he is well into his 75 year. The head sentence and non-parole period (72% of the head sentence) might both be considered heavy, albeit appropriately heavy. The applicant submits that these factors, together with the applicant’s declining mental health and cognitive abilities and his extremely poor quality of life in G Division, as has been summarised in these reasons and which is unlikely to change appreciably in the foreseeable future, all suggest that the present prosecution amounts to, what the cases sometimes describe as, "objective persecution" for no sufficient purpose or public interest.

In this context, the question arises as to how a sentencing judge would respond if at the end of at least two trials[53] the applicant were to be found guilty of all charges. In this respect I need to refer to a portion of the sentencing remarks of Nyland J following the 2001 convictions. It will be remembered that the applicant had been found guilty of three counts of indecent assault, six counts of unlawful sexual intercourse and one count of offering a benefit to a witness.[54] All of the sexual abuse charges were viewed against a background of an extensive course of conduct and a very significant breach of trust. Her Honour sentenced the applicant after exercising the discretion available to her under s18A of the Sentencing Act to impose one penalty to reflect all of the offending. However, she did indicate that, in her view, the penalty for the bribe offence would require a sentence of about 5 years imprisonment. On this basis, it can be inferred that the portion of the 25 year head term referrable to the sexual abuse offences was approximately 20 years. However, having referred to the sentencing standards discussed in R v D[55] and in the subsequent decision of the Court of Criminal Appeal in R v AJW [56]concerning a course of conduct of sexual offending against multiple underage victims, her Honour said this.

I have inferred that in considering and applying the principle of totality[57], her Honour did have regard, amongst other matters, to the fact that the applicant was about 56 years old at the time of sentencing and that a sentence of 25 years with an 18 year non-parole period would be likely to consume most of his remaining years of life. However, he was left with the possibility that he might live some of his final years out of custody.

The question arises as to what any judge when sentencing with respect to the present charges would do. I am in no position to determine that and it would not be appropriate to do so. However, given that any sentence greater than that actually imposed by Nyland J in 2001 was then regarded by her Honour as "totally crushing" it is hard to see how any additional sentence ordered to be served cumulatively and any extended non-parole period imposed for the present offending would not also be seen as totally crushing. Although, of course, judicial minds differ on these matters. It is conceivable, although how likely or not need not be considered, that any sentencing judge might order only a nominal extension of the present non-parole period.

In any event, it cannot be assumed that the applicant will be granted parole at the end of his 18 year non-parole period. It would be open to the parole board, in the exercise of its discretion, to refuse parole if in all of the circumstances then pertaining it is not satisfied that parole is warranted or justified. In this respect, I observe that the applicant still has not acknowledged his guilt with respect to the 2001 convictions or demonstrated contrition for or towards those victims. In addition, it may be open to the executive to intervene. It is important, of course, that any sentence imposed with respect to the present charges if proved, properly reflects the gravity and seriousness of the offences and takes account of all of the usual considerations provided for by s10 of the Sentencing Act. However, if the question were to be asked- how long should the applicant remain in custody over and above the present 18 year non-parole period? - it might be thought that the parole board and/or the executive would be better placed to answer it with the benefit of the information that would be available in 2019. There is much to be said for the rhetorical question put by counsel for the accused during submissions - "what is to be achieved [by continuing with the present proceedings]?".

There is a further consideration here which arises again as a result of the existence of the statutory immunity and its removal in June 2003. It is quite likely that had proceedings relating to the present charges not been statute barred in 2001 by reason of s76A of the Criminal law Consolidation Act as it then stood, most, if not all of them would have been heard either during the trial before Nyland J or shortly thereafter in the event of any successful severance applications. It is likely that most, if not all, of the present charges would have been considered by Her Honour at the time the applicant was sentenced for the offences of which he was convicted in 2001. It can be inferred from Her Honour’s sentencing remarks that the applicant, most likely, would have received much the same sentence in this event. In this sense, it can be said that the existence of the statutory bar deprived the applicant of the opportunity to have all matters dealt with at or about the same time and one sentencing package constructed. Such a sentencing package most likely, would have been along the lines of that in fact constructed by Her Honour in 2001. As against the applicant, it can be said that this opportunity was in his own hands, in that he could have asked for these additional matters to be taken into account at the time of the original sentencing. However, this raises the question as to the extent to which such matters could have been taken into account, given that that there was no possibility of the applicant being charged or convicted with respect to them, other than by way of adding to the background course of conduct already under consideration. Paradoxically, what at the time was seen to work a benefit for the applicant may now be regarded as having disadvantaged him in so far as the overall sentencing process is concerned.

In Aitchison v DPP[58] Higgins J granted a stay of criminal proceedings where the accused had been charged with various sexual offences alleged to have been committed against children in 1970 or 1971. The indictment was presented in 1995. Higgins J described the offences alleged as undoubtedly serious and of a nature that ordinarily would warrant prosecution even in the face of extensive delay and prejudice flowing to the accused as a result of the delay that was present before His Honour. However, the accused had been convicted of indecent assault in 1973 and further convictions had been recorded in 1992 and in 1996. As a consequence of the 1996 convictions the accused was already serving a three year prison sentence. Higgins J thought that the conduct giving rise to the sentence being served had been more serious than that alleged in the proceedings before His Honour. His Honour also expressed the view that it would be unlikely that findings of guilt in the matters before him would be visited with custodial sentences or, if they were, that the existing non-parole period or head sentence to which the accused was subject would be extended. His Honour concluded as follows.[59]

In DA v R[60] Higgins J returned to this issue.

In R v Polyukhovich[61] Cox J said "a fair trial is not the same as a perfect trial". The fact that unfairness, even irreparable unfairness, and whether it derives from delay, pre trial publicity or some other factor, necessarily will attend the trial of an accused will not of itself lead to a stay. In order to grant a stay, the court must be satisfied that there is an unacceptable risk to a fair trial. The question of whether the risk that an accused will not enjoy a fair trial is unacceptable is to be determined within the context of and having regard to the strength or importance of the public interest considerations relevant to the particular proceedings in question. In conducting the balancing exercise, the weight to be accorded to the public interest, in the disposition of charges of serious offences, in the conviction of those guilty of crime and in the need to maintain public confidence in the administration of justice[62] will not be constant across all criminal proceedings.

The potential risks to a fair trial, even those for which, in prospect, there is potential to accommodate through the jury selection process, directions to the jury and faith in the jury system, must be weighed against what is to be achieved.

In this matter I am satisfied that should a trial of the charges set out in either of the two informations proceed:

The contributory effect that the existence and removal of the statutory immunity has had on the prejudice suffered by the applicant in this case is unusual. This is not the usual "simple" or orthodox case involving prejudicial delay and/or pre-trial publicity. Here the system of criminal justice, as it has responded to a need to be able to pursue historical sex offending, has itself added a level of unfairness in the peculiar circumstances of this case. This is a public interest consideration that operates in favour of a stay.

In my view, these matters, in combination, do give rise to an unacceptable risk to a fair trial. However, if I am in error here and in any event, these matters of unfairness must be weighed against the public interest in the disposition of these proceedings.

I do not wish to be seen as diminishing in any way the gravity and seriousness of the offences committed by the applicant against the present complainants if such, ultimately, were to be proved. I also do not wish to be seen to be diminishing in any way the importance of these matters to the complainants themselves. Nevertheless, as I have indicated, I do take the view that this is a case where there is, for various reasons, a significantly reduced public interest in proceeding to trial.[63] In these circumstances, the risks to a fair trial in this matter are too great to be warranted or justified and are unacceptable. I am satisfied in the terms used by Bleby J[64] that a continuation of these prosecutions will lead to oppression and injustice inconsistent with the recognised purpose of the administration of criminal justice.

I order that the proceedings brought against the applicant on each of the two informations dated 1 September 2008 filed in this court (DCCRM 1275 of 2008 and DCCRM 1274 of 2008) be permanently stayed.