Regina v Harold Arthur Burke [2006] NSWDC 151

Regina v Harold Arthur Burke [2006] NSWDC 151

The applicant did not establish the rare and exceptional circumstances required for a permanent stay. The medical evidence showed an 83 year old applicant with significant physical ailments and early age-related dementia, but none of the experts stated that a trial would be inhumane, would offend common humanity, or would place him at risk of long-term damage or worse. His possible cognitive and physical difficulties were partly speculative at the pre-trial stage, could be managed by trial arrangements to reduce stress, and any emerging fitness issue could be addressed under Part II of the Mental Health (Criminal Procedure) Act 1990. Accordingly, the trial had not been shown to be...

Jurisdiction
Australia
Judgment Date
12 December 2006
Procedural Posture
Criminal Proceedings Involving Sexual Assault Charges; Notice of Motion for Permanent Stay of Proceedings / Pre Trial Application After Committal for Trial
Outcome
Application for permanent stay refused.
Legal Topics
['permanent Stay of Proceedings' 'abuse of Process' 'fair Trial According to Law' 'fitness to Be Tried' 'mental Health in Criminal Proceedings' 'sexual Assault Charges Involving Child Complainant']
['criminal Law' 'criminal Procedure'] ['permanent Stay of Proceedings' 'abuse of Process' 'fair Trial According to Law' 'fitness to Be Tried' 'mental Health in Criminal Proceedings' 'sexual Assault Charges Involving Child Complainant']

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Procedural Posture

Criminal Proceedings Involving Sexual Assault Charges; Notice of Motion for Permanent Stay of Proceedings / Pre Trial Application After Committal for Trial

Legal Issues

  1. 1 ["Whether the applicant's age, physical ill health and mental health issues meant that requiring him to stand trial would offend common humanity." 'Whether any trial of the applicant would lose the essential quality of being a fair trial according to law.' 'Whether the applicant had discharged the heavy onus required for the exceptional remedy of a permanent stay.' 'Whether possible issues about fitness to be tried should instead be addressed under Part II of the Mental Health (Criminal Procedure) Act 1990.']

Ratio Decidendi

The applicant did not establish the rare and exceptional circumstances required for a permanent stay. The medical evidence showed an 83 year old applicant with significant physical ailments and early age-related dementia, but none of the experts stated that a trial would be inhumane, would offend common humanity, or would place him at risk of long-term damage or worse. His possible cognitive and physical difficulties were partly speculative at the pre-trial stage, could be managed by trial arrangements to reduce stress, and any emerging fitness issue could be addressed under Part II of the Mental Health (Criminal Procedure) Act 1990. Accordingly, the trial had not been shown to be...

Court Disposition

Application for permanent stay refused.

Orders

  • ['The application for a permanent stay is rejected.' 'The matter is stood over to the call-over this Thursday to set a trial date next year.' 'Either party may list the matter thereafter before Nicholson SC DCJ or Judge Ellis in respect of any case management or fitness issue.']