Dementia not a bar to a fair trial - continued development in the law of permanent stays

In brief - A permanent stay of proceedings may not be granted even if the defendant is experiencing dementia or cognitive decline. Following our August article on permanent stays, a recent case from the NSW District Court further illustrates the exceptional conditions a defendant must satisfy in order for a court to grant a permanent stay.

Key takeaways

• whether a permanent stay is granted will depend on the particular circumstances of the case and the application of relevant principles set out in Chalmers v Leslie & Anor [2020] QSC 343

• a permanent stay of proceedings may not be granted even if an alleged perpetrator is experiencing considerable cognitive decline

• the chronology of when disclosures were made and any opportunities the alleged perpetrator had to respond to the complaint will be highly relevant

• a fair trial is not synonymous with a perfect trial

Burrows v Patsantzopoulos [2022] NSWDC 442 [04 October 2022]

Introduction

Mr Patsantzopolous, by his tutor, sought an order that proceedings against him be permanently stayed. The Plaintiff, Ms Burrows, alleged that she was sexually assaulted by the Defendant between the ages of 6 and 8 years old, in or around 1990.

After the Defendant suffered a stroke in 2014, his cognitive faculties began to decline. In September 2022, the Defendant was diagnosed with Major Neurocognitive Disorder, and more specifically, vascular dementia.

The Defendant argued that, due to his cognitive decline, the proceedings would produce manifest unfairness to him. He argued that he would be effectively absent for the whole of the proceedings and that he would not be able to understand issues arising from the hearings, instruct his counsel, or make a defence to his allegations (standards identified in R v Presser (1958) VR 45).

The Importance of the Chalmers Factors and Tendency Evidence

The plaintiff relied on the relevant principles relating to an application for a permanent stay found in Chalmers v Leslie & Anor [2020] regarding the loss of capacity of a defendant. Relying on Factors (a), (c), (e) and (g), the Plaintiff argued that:

• she had confronted the defendant with allegations of the abuse on several occasions prior to his stroke

• the plaintiff had made a police statement in October 2013, prior to the defendant's stroke

• the defendant had denied the allegations of abuse when he was arrested for them in 2017

• according to the common law interpretation of "coherence" found in Moubarak by his Tutor Coorey v Holt (2019) 100 NSWLR 218, the Defendant could not be both fit for a criminal trial and unfit for the civil trial.

As well as the Chalmer's Factors, the Plaintiff relied on other tendency evidence available. Referring to Ellis v Pell [2006] NSWSC 109, the Plaintiff argued that the Defendant had been found guilty of 8 counts of sexual assault perpetrated against other victims, and that their 'highly probative' evidence could be used in the civil proceedings.

The Plaintiff further emphasised that the Defendant clearly still retained the ability to instruct his legal counsel, as shown by the detailed questions put to her at a 2020 special hearing on the Defendant's fitness to stand trial in criminal proceedings. Finally, according to a 2022 psychiatric report, the Defendant still retained the ability to distinguish between guilty and not guilty.

Conclusion 

His Honour found that the Defendant did not discharge the onus of establishing a basis for a permanent stay. The Defendant, though not fully able to participate in the proceedings, was nonetheless able to instruct his counsel and distinguish between guilty and not guilty. At the same time, the Plaintiff's argument that the Defendant had been found fit to stand trial at the 2020 special hearing was rejected (rather, the outcome was predicated on his unfitness to stand trial). His Honour also took into account the available tendency evidence, and that the defendant had denied allegations both before and after the stroke. 

The defendant's motion to stay the proceedings was dismissed.