AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 29 October 2021

R v Jones (No 2)

[2021] NSWDC 591

Sexual offences
CRIME MULTIPLE COUNTS PRINCIPLES TO BE APPLIED MENTAL HEALTH SPECIAL HEARING DEFENDANT AGED 75 DEMENTIA

Citation: R v Jones (No 2) [2021] NSWDC 591
Court: District Court of New South Wales
Date: 29 October 2021
Judge: Haesler SC DCJ

Background

The defendant, referred to as Mr Jones, is a 75-year-old man diagnosed with dementia and other significant health conditions. He faced 12 counts of indecent assault on a person under 16 years of age, involving two of his daughters. The alleged offences were said to have occurred between December 1980 and December 1983 in the Illawarra region.

In February 2020, the court had already found Mr Jones unfit to be tried. The Mental Health Tribunal subsequently determined he would not become fit within 12 months. The Director of Public Prosecutions elected to proceed, and an application for a permanent stay of proceedings was refused in February 2021.

Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the matter proceeded to a special hearing commencing 18 October 2021. Because of COVID-19 restrictions and the defendant's location in Queensland, both Mr Jones and legal representatives participated via audio-visual link.

  • Whether a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was the appropriate procedural mechanism, and what verdicts were available within that framework
  • Whether, on the limited evidence available, the prosecution proved beyond reasonable doubt that Mr Jones committed each of the 12 charges
  • How the court should assess complainant evidence in circumstances involving significant delay, tendency evidence, complaint evidence, and a defendant with dementia who could not give evidence himself
  • What weight, if any, to give to evidence of good character, and how to assess reliability and credibility of witnesses in the context of allegations spanning nearly four decades

Decision

A special hearing is required to be conducted as nearly as possible to a criminal trial. The defendant is taken to have pleaded not guilty, and the prosecution must prove each element beyond reasonable doubt. The court noted that the purposes of the special hearing include doing justice to both parties and giving the defendant an opportunity to be found not guilty. The verdicts available were either not guilty, or a finding that on the limited evidence available the defendant committed the offence charged.

Counts 1 to 3 related to the younger daughter, BW. The court returned not guilty verdicts on all three counts. While the judgment does not set out the full reasoning for these counts in the extracted text, they were considered separately from the remaining nine counts.

Counts 4 to 12 related to the older daughter, JW, and covered alleged conduct at two locations over several years. The court accepted, on the limited evidence available, that there was a real possibility assaults with acts of indecency had been committed by Mr Jones on JW. However, the court found that this fell well short of the required standard. The court was explicit that it does not act on what it believes might probably be the case, and that the significant passage of time meant it could not be satisfied beyond reasonable doubt about what actually happened, or that any specific alleged event occurred as described.

The defendant was discharged on all 12 counts. The court recorded that it entertained reasonable doubt across all counts, that the defendant was entitled to the benefit of that doubt, and that each count had to be assessed individually on its evidence.

Orders Made

  • The defendant is discharged on all 12 counts.

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 must be conducted as closely as possible to a criminal trial, with the prosecution bearing the full burden of proof beyond reasonable doubt even where the defendant has been found permanently unfit to be tried.
  • The District Court confirmed that a finding of "real possibility" that offences occurred does not satisfy the criminal standard. The court must be satisfied beyond reasonable doubt, not merely persuaded on the balance of probabilities.
  • Where a defendant with dementia cannot give evidence, the court must still ensure the proceedings do not prejudice the defendant beyond what his unfitness already does, and must give him the benefit of any reasonable doubt.
  • Significant delay between alleged historic offences and a special hearing can make it impossible for the court to be satisfied beyond reasonable doubt about specific events, even where the evidence raises genuine concern.
  • Under this statutory framework, the court must separately record all legal principles applied and each factual finding relied upon, performing the function ordinarily undertaken by a jury.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW) (repealed)
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Evidence (Audio and Visual Links) Act 1998 (NSW)
- Children (Criminal Proceedings) Act 1987 (NSW)

Cases:
- R v Jones [2020] NSWDC 655
- De Belin v R; Sinclair v R [2020] NSWDC 487
- Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
- IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14
- The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
- TO v R [2017] NSWCCA 12
- W v R [2014] NSWCCA 110