E Point Perfect
Law \ Legal

Abuse: Stay application refused (NSW).

Burrows v Patsantzopoulos [2022] NSWDC 442 (On Caselaw)

The defendant’s stay application was refused in this matter, despite his age (87) and that he was  detained in 2021 / 2022 pursuant to orders of the Mental Health Review Tribunal following a stroke in 2014. The plaintiff’s allegations had been reported to the police in 2013 and he was later arrested in 2017.

The primary judge discussed the relevant issues at [58] – [63]:

It cannot be gainsaid that the defendant’s capacity to mount his defence is compromised by his inability to give evidence, and provide detailed instructions to his lawyers. However, his inability to fully participate in the hearing cannot be determinative of this motion. Moreover, as Ms McMillan says in her most recent report, the defendant is still capable of understanding the concepts of “guilty” and “not guilty” and expressed himself to her as being “not guilty”. Thus it would be possible for the tutor to file a verified defence denying the plaintiff’s case.

I should also add that a denial of the allegations has been the defendant’s consistently articulated position from prior to suffering his stroke. It was also his position, and clearly articulated, albeit after the stroke, in the pretext telephone calls and in the secretly recorded face-to-face meetings with the plaintiff.

It is also notable, in this regard, that the cross examination by his counsel of the complainants in the Special Hearing suggested that the defendant was able to give detailed instructions to his counsel at the time of that hearing.

I also take into account the fact that the plaintiff provided a statement to the police in October 2013 and, although the defendant was not arrested and charged until May 2019, he declined an interview, and denied the allegation.

I also accept the plaintiff’s contention that there is other evidence available to the parties which go to the issue of the liability of the defendant. In the Special Hearing the complainants in each of the 8 counts which the defendant faced on his indictment gave evidence. This evidence was admitted as tendency evidence across the indictment, and no doubt would be sought to be adduced in these proceedings as tendency evidence.

I acknowledge that the defendant’s cognitive state, being what it is, will necessarily result in the hearing of these proceedings being imperfect. In that regard, however, it is important to bear in mind that there will seldom, if ever, be a perfect trial or hearing, and that the law does not require one to be achieved. What is requires to be achieved is a fair trial. As Bell P stated in Moubarak “a fair trial is not synonymous with a perfect trial” (at [89]).

[BillMaddensWordpress #2044]

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