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District Court 11 May 2022

R v Pethybridge

[2022] NSWDC 171

Sexual offences
CRIMINAL LAW EVIDENCE ADMISSIBILITY PRACTICE AND PROCEDURE PERSON UNFIT TO BE TRIED

Citation: R v Pethybridge [2022] NSWDC 171
Court: District Court of New South Wales
Date: 11 May 2022
Judge: Abadee DCJ

Background

The defendant faced an indictment containing multiple counts of indecent assault and other sexual offences against multiple complainants, alleged to have occurred from the late 1950s through to the late 1980s. He was convicted at two separate jury trials in 2018. The Court of Criminal Appeal quashed the convictions arising from the first trial on 2 October 2020 and ordered a retrial.

Before that retrial could proceed, the defendant was found unfit to stand trial. On 21 May 2021, Acting Judge Woods QC determined that the matter should proceed by way of a "special hearing" under Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act). A special hearing is the statutory mechanism for determining criminal liability where a defendant is found unfit to stand trial and is unlikely to become fit within 12 months.

When the special hearing commenced, the Crown sought to tender the recorded original evidence of the complainants and special witnesses under s 306B of the Criminal Procedure Act 1986 (NSW). The defendant opposed the tender, arguing that s 306B did not apply to special hearings. That threshold admissibility dispute was the subject of this ruling.

  • Whether a special hearing conducted under the MHCIFP Act constitutes a "new trial" or "new trial proceeding" within the meaning of s 306B(1) of the Criminal Procedure Act 1986 (NSW), thereby permitting the Crown to tender the original evidence of complainants or special witnesses.
  • Whether the legislative purpose and extrinsic material (including the explanatory note and Second Reading Speech) supported a construction of s 306B that included or excluded special hearings.
  • Whether s 56(1) of the MHCIFP Act provided an independent pathway to the same result, by directing that a special hearing be conducted "as if" it were a trial.

Decision

Abadee DCJ ruled in favour of the Crown, finding that the original evidence of the complainants and special witnesses was admissible at the special hearing under the combined operation of s 56(1) of the MHCIFP Act and s 306B(1) of the Criminal Procedure Act.

The defendant argued that a special hearing is fundamentally distinct from a trial or retrial: it is predicated on the defendant's unfitness, it cannot result in a conviction, and s 306B was enacted with ordinary trial procedures in mind. The defendant also relied on the amending Act's title and the explanatory note, which referred to "trials" and "retrials," to support a narrower construction. On that reading, s 306B governed trial procedure rather than the different regime applicable to special hearings.

His Honour's preferred pathway to the result was s 56(1) of the MHCIFP Act itself. That provision directs that a special hearing be conducted "as if" it were a trial of the accused for the offence. His Honour found this language sufficiently broad to attract the provisions of s 306B. In substance and function, s 56(1) of the MHCIFP Act operated in a manner that was not materially different from s 306I of the Criminal Procedure Act (which expressly uses the phrase "new trial proceedings" in the context of subsequent trials following a hung jury), and that comparison reinforced the conclusion that s 306B applied.

His Honour expressly declined to adjudicate on the conflicting obiter dicta from the Court of Criminal Appeal in EK v The Queen concerning whether the expressions "new trial" or "new trial proceeding" in s 306B and s 306I extend to special hearings. That question remained unresolved. The ruling was confined to the ground that s 56(1) of the MHCIFP Act provided the necessary statutory pathway, making it unnecessary to resolve the broader construction debate.

Orders Made

• The Crown may rely upon the original evidence of the complainants and special witnesses in this special hearing, subject to valid objections or suggested alterations under sections 306B(5D) and/or 306B(5E) of the CP Act.

Key Takeaways

  • Under s 56(1) of the MHCIFP Act, a special hearing is to be conducted "as if" it were a trial of the accused. The District Court held that this provision operates as the statutory gateway through which s 306B(1) of the Criminal Procedure Act applies to special hearings.
  • The combined operation of s 56(1) of the MHCIFP Act and s 306B(1) of the Criminal Procedure Act permits the Crown to tender a record of original evidence of complainants or special witnesses at a special hearing that follows a Court of Criminal Appeal order for a new trial.
  • A defendant's unfitness to stand trial does not, of itself, preclude the Crown from relying on the recorded evidence of complainants who gave evidence at prior trials, at least where the statutory "as if a trial" framework applies.
  • The conflicting obiter dicta in EK v The Queen (2010) 79 NSWLR 740 on whether "new trial" or "new trial proceeding" in ss 306B and 306I of the Criminal Procedure Act extends to special hearings was left unresolved. His Honour expressly declined to express a view on that question, finding it unnecessary given the s 56(1) pathway.
  • Admissibility under s 306B remains subject to any valid objections or alterations under ss 306B(5D) and 306B(5E) of the Criminal Procedure Act, which were not argued in this instance.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), ss 306B, 306I
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 54, 56
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 21
- Evidence Act 1995 (NSW)
- Interpretation Act 1987 (NSW), ss 33, 34

Cases
- EK v The Queen (2010) 79 NSWLR 740
- Pethybridge v R [2020] NSWCCA 247