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District Court 9 December 2019

R v WM (No 2)

[2019] NSWDC 861

Sexual offences
CRIMINAL PROCEDURE SPECIAL HEARING SEXUAL INTERCOURSE WITHOUT CONSENT MENTAL ILLNESS BURDEN OF PROOF

Citation: R v WM (No 2) [2019] NSWDC 861
Court: District Court of New South Wales
Date: 9 December 2019
Judge: P Taylor SC DCJ

Background

The accused (identified by pseudonym throughout, pursuant to a suppression order under s 578A of the Crimes Act 1900) faced two counts of sexual intercourse without consent involving a complainant referred to by pseudonym. The charges related to alleged penile-oral and penile-vaginal intercourse. The accused was also charged with the alternative offence of attempted sexual intercourse without consent in relation to the second count.

The accused had previously been found unfit to stand trial following an inquiry under the Mental Health (Forensic Provisions) Act 1990 (MH(FP) Act). The Mental Health Review Tribunal subsequently determined he would not become fit to be tried within 12 months of that finding. As a result, the matter was referred for a special hearing before a judge alone, pursuant to s 19 of the MH(FP) Act.

In addition to denying the offences, the accused raised the alternative defence of not guilty by reason of mental illness.

  • Whether the accused engaged in penile-oral sexual intercourse with the complainant
  • Whether the accused engaged in penile-vaginal sexual intercourse with the complainant, and specifically whether penetration occurred
  • Whether the accused had the relevant knowledge of the complainant's lack of consent (under the expanded definition in s 61HE of the Crimes Act 1900)
  • Whether, as an alternative to the second count, the accused committed attempted sexual intercourse without consent
  • Whether the accused was not guilty by reason of mental illness in relation to any offence otherwise established

Decision

The judge conducted the hearing as a special hearing under the MH(FP) Act, which required the proceedings to be conducted as nearly as possible to a regular criminal trial. The court noted that the verdicts available in a special hearing include not guilty, not guilty by reason of mental illness, and findings that the accused "on the limited evidence available" committed the charged offence or an alternative offence. The court also concluded, based on the inclusive language of ss 21A and 22, that a verdict of not guilty of an alternative offence was also available.

On the question of consent, the accused conceded that the complainant had not consented to any sexual acts if those acts were found to have occurred. The contested issues were therefore whether the alleged acts took place and whether the accused had the requisite knowledge of non-consent.

After weighing the evidence from the complainant and other witnesses against the accused's account (which was consistently one of being robbed, and which the court found could not be dismissed), the court identified a reasonable doubt as to whether any sexual acts occurred and whether the accused held, was reckless as to, or lacked reasonable grounds for believing there was no consent. The judge found that while circumstances may have made the commission of an attempted offence seem likely, that was insufficient. Reasonable doubt remained across all counts.

Given the presence of reasonable doubt, the court did not need to reach a conclusion on the defence of not guilty by reason of mental illness.

Orders Made

  • Verdict of not guilty returned on Count 1 (penile-oral sexual intercourse without consent)
  • Verdict of not guilty returned on Count 2 (penile-vaginal sexual intercourse without consent)
  • Verdict of not guilty returned on the alternative offence of attempted sexual intercourse without consent

Key Takeaways

  • A special hearing under the MH(FP) Act is conducted as closely as possible to a regular criminal trial, but the verdicts available differ and include findings based on "limited evidence available."
  • Where an accused is found unfit to be tried, that unfitness is presumed to persist under s 15 of the MH(FP) Act unless the contrary is established.
  • The District Court confirmed that s 162 of the Criminal Procedure Act 1986, which provides for alternative verdicts of attempt, applies in a special hearing by virtue of s 21(1) of the MH(FP) Act, a position accepted by both parties and further supported by ss 22(1)(d) and 23(1) of the MH(FP) Act.
  • A finding that an offence was probably committed is not sufficient: the standard remains that the court must be satisfied beyond reasonable doubt, even on limited evidence, and reasonable doubt entitles the accused to a not guilty verdict.
  • The defence of not guilty by reason of mental illness requires the accused to prove, on the balance of probabilities, that a disease of the mind produced a defect of reason such that the accused either did not understand the nature and quality of the acts or did not know the acts were wrong. In this case, the court did not reach that question.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61HA, 61HE, 578A
- Criminal Procedure Act 1986 (NSW), s 162
- Evidence Act 1995 (NSW), s 165
- Mental Health (Forensic Provisions) Act 1990 (NSW), ss 10, 14, 15, 16, 19, 21, 21A, 22, 23

Cases
- Anderson v The Queen [2010] VSCA 108
- R v Randall (1991) 53 A Crim R 380