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Key decisions

  • RC v Director of Public Prosecutions [2024] NSWCCA 95
  • Tukuafu v R [2024] NSWCCA 84

RC v Director of Public Prosecutions [2024] NSWCCA 95

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

With so many historical sexual offences coming before the courts, so too are more defendants who are unfit for trial – some of them so unfit that to proceed at all might be thought unfair. In this decision, the Court of Criminal Appeal (‘CCA’) examined the so-called ‘common humanity’ test, noting it is a test with no set criteria. To the extent it may have been suggested it sometimes involves balancing risks and 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 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 which 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.

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