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District Court 5 October 2021

R v Antin (a pseudonym)

[2021] NSWDC 532

Sexual offences
CRIME PRINCIPLES TO BE APPLIED MENTAL HEALTH SPECIAL HEARING DEFENDANT AGED 90 UNABLE TO PARTICIPATE OFFENCES AGAINST GRANDDAUGHTER

Citation: R v Antin (a pseudonym) [2021] NSWDC 532
Court: District Court of New South Wales
Date: 5 October 2021
Judge: Haesler SC DCJ

Background

The accused (referred to throughout by the pseudonym "Antin") is a 90-year-old man who had previously been found unfit to stand trial due to dementia and related cognitive impairment. He faced nine counts (including one alternative count) on an indictment alleging serious sexual offences against three child complainants. The alleged offending spanned a period from 2004 to 2017 and involved two of the accused's family members and a child who lived next door.

Because the accused was found unfit to be tried in the ordinary way, the Director of Public Prosecutions elected to proceed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act). That legislation required the District Court to conduct a "special hearing." The accused participated via audio-visual link from the Aged Care Rehabilitation Unit at Long Bay Prison Hospital, with the assistance of an interpreter. His engagement with proceedings was limited and at times absent, consistent with the expert psychiatric evidence about his condition.

During the hearing, on day two, the DPP directed that all four counts relating to the first complainant (Complainant A) be withdrawn. The remaining five counts concerned two complainants: the accused's granddaughter (Complainant B) and a child neighbour (Complainant C).

  • What procedural framework and evidentiary rules govern a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020?
  • What verdicts are available at a special hearing, and what standard of proof applies?
  • Whether, on the limited evidence available, the prosecution proved beyond reasonable doubt that the accused committed each of the remaining offences charged.
  • How the court should treat evidence of good character, delayed complaint, tendency evidence, and allegations of concoction in the context of a special hearing.
  • Whether an attempt to commit sexual intercourse with Complainant C (Count 7) was proved, or only the alternative count of indecent assault.

Decision

A special hearing under the Act must be conducted as nearly as possible to a normal criminal trial. The accused is taken to have pleaded not guilty, retains legal representation, and may raise any defence available in an ordinary trial. The prosecution must still prove each element of the relevant offence beyond reasonable doubt. However, the verdicts open to the court differ from those in a regular trial: the court may find the accused not guilty, return a special verdict of act proven but not criminally responsible, or find that on the limited evidence available the accused committed the offence charged or an available alternative offence. A finding of guilt in a special hearing does not constitute a conviction at law.

On the counts relating to Complainant B (the accused's granddaughter, aged approximately 3 and then 7 or 8 at the relevant times), the court accepted Complainant B's evidence as credible and detailed. Haesler SC DCJ noted some inconsistencies in the accounts given by other witnesses but found these were not material. The court gave full weight to the accused's good character and acknowledged the disadvantages he faced in testing the evidence given his unfitness, but was nonetheless satisfied beyond reasonable doubt on the limited evidence available that both counts were proved.

In relation to Complainant C (the neighbouring child, aged 10 or 11), the court found that the prosecution had not proved beyond reasonable doubt that the accused attempted sexual intercourse with her (Count 7). However, the court was satisfied on the limited evidence available that the accused committed the alternative offence of indecent assault of a child under 16 (Count 8) and also the separate indecent assault count (Count 9).

The court also confirmed that, should a finding be made that the accused committed the offence or offences charged, it would be required to determine what custodial sentence would have been appropriate had the accused been fit to be tried and convicted. The matter was stood over for that penalty determination. The court expressly noted that its qualified findings on Counts 5, 6, 8 and 9 do not constitute a basis in law for a conviction under section 62(1) of the Act.

Orders Made

  • The matter was stood over to Wollongong District Court on 27 October 2021 for determination of penalty.
  • Bail was refused.

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 closely mirrors a criminal trial in its procedural requirements, including the requirement that the prosecution prove each element of every offence beyond reasonable doubt, but it produces qualified findings rather than convictions at law.
  • Under section 62(1) of the Act, a finding that on the limited evidence available a defendant committed an offence is expressly not a conviction; the legal consequences differ from those following a verdict of guilty in an ordinary trial.
  • Where an accused is found unfit to be tried, the court retains an obligation to consider the accused's good character and any disadvantages arising from the unfitness when weighing the evidence, even if those matters do not ultimately displace findings supported by credible complainant testimony.
  • In dismissing the attempt count (Count 7) but finding the alternative indecent assault count (Count 8) proved, the court illustrated how alternative counts in a special hearing can capture a lower degree of proved criminal conduct where the evidence falls short of establishing the primary offence.
  • Special hearings may be conducted via audio-visual link, including in circumstances where a defendant's practical engagement with proceedings is minimal due to cognitive impairment, provided the procedural requirements of the Act and relevant legislation are satisfied.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), particularly Part 4 Division 3 and ss 5, 54, 57, 62(1)
- Crimes Act 1900 (NSW), ss 61M(2), 66A(1), 66D, 578A
- Criminal Procedure Act 1985 (NSW)
- Evidence Act 1995 (NSW)
- Evidence (Audio and Visual Links) Act 1998 (NSW), Part 1B
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Cases
- R v Mr Antin, unreported, Wollongong District Court, 31 March 2021 (fitness hearing, per Acting Judge Woods QC)
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22