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District Court 26 May 2022

R v Pethybridge (No.2)

[2022] NSWDC 180

Sexual offences
CRIMINAL LAW DEFENDANT UNFIT TO BE TRIED DETERMINATION BY JUDGE ALONE

Citation: R v Pethybridge (No.2) [2022] NSWDC 180
Court: District Court of New South Wales
Date: 26 May 2022
Judge(s): Abadee DCJ

Background

The defendant was a long-serving officer of The Salvation Army. He faced 13 charges on indictment comprising indecent assault and sexual offences against five complainants, all children at the time of the alleged offending. The offences were alleged to have occurred across several decades, from 1958 to the early 1980s, at various locations in New South Wales. Each complainant's family had close connections to The Salvation Army.

In May 2021, the defendant was found unfit to be tried under normal criminal procedures. As a result, the proceedings were conducted as a "special hearing" under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Because the defendant was found unfit, he could not participate in the hearing to the same extent as an accused in a standard criminal trial, and he was taken by statute to have entered a not guilty plea on all charges.

The defendant was represented by counsel throughout the special hearing. Counsel cross-examined Crown witnesses, called defence witnesses, and provided written submissions. The defendant elected not to give evidence at the special hearing, although his evidence from a 2018 trial was before the court.

  • Whether a special hearing under s 56 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) could properly proceed, and how it should be conducted, where the accused was found unfit to be tried
  • Whether the court was satisfied, on the limited evidence available, that the defendant committed each of the 13 charges
  • How to assess the credibility and reliability of complainant evidence given the significant delay between the alleged offending and the charges
  • Whether tendency evidence, coincidence evidence, context evidence, and complaint evidence was admissible and, if so, what use could be made of it
  • Whether the absence of complaint or delay in complaining was relevant to the assessment of the complainants' evidence
  • How the court should treat the defendant's election not to give evidence at the special hearing, and the evidential use of his prior trial evidence

Decision

The special hearing was conducted by judge alone under s 56(9) of the MHCIFP Act, as no election was made for the matter to proceed differently. The court approached the hearing as nearly as possible to a criminal trial, while recognising the structural limitations imposed by the defendant's unfitness, including the constrained nature of the evidence available and the defendant's inability to participate fully.

The court gave itself a comprehensive set of directions of law before proceeding to findings. These directions addressed the standard and burden of proof, the presumption of innocence, the separate consideration required for each charge and each complainant, the Markuleski direction (concerning the limited use of evidence from one complainant to prove a charge relating to another), the limited nature of a special hearing, and the use of tendency, coincidence, context, and complaint evidence.

The court assessed the credibility and reliability of each complainant individually. Significant weight was placed on the consistency, detail, and corroboration of the complainants' accounts across a range of supporting witnesses. The court also addressed the absence of or delay in complaint, finding those circumstances were explicable given the relationships involved and the defendant's authority as a Salvation Army officer. The defence challenged the credibility of each complainant and relied on alibi evidence and inconsistencies in the accounts.

The court proceeded to make findings on each charge, including findings about tendency and coincidence evidence across the multiple complainants. The detailed verdicts flowed from those findings.

Orders Made

No orders were made in this decision.

Key Takeaways

  • A special hearing under s 56 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is conducted as nearly as possible to a criminal trial, but on the "limited evidence available," with the accused taken to have pleaded not guilty and unable to participate to the same degree as a fit accused.

  • Where no election is made, the question of whether the accused committed the charged offences is determined by the judge alone, without a jury, pursuant to s 56(9) of the MHCIFP Act.

  • Delay in making a complaint, or the absence of complaint altogether, does not automatically undermine a complainant's credibility; the court examines the circumstances, including the authority or position of the alleged offender over the complainant, to assess whether the delay is explicable.

  • Tendency, coincidence, context, and complaint evidence each required careful direction as to the purpose for which it could be used, and the court was required to give itself appropriate limiting directions consistent with the Evidence Act 1995 (NSW) and applicable case law before making findings.

  • Historical sexual offence proceedings involving multiple complainants and significant delays require the court to consider separately the evidence relating to each charge, assess each complainant's evidence individually, and be alert to the dangers of impermissible reasoning from one complainant's evidence to support findings on another's charges.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 54, 56
- Crimes Act 1900 (NSW), ss 62, 61A, 65, 76
- Criminal Procedure Act 1986 (NSW), ss 56, 59, 133, 161A, 293A, 294, 306
- Evidence Act 1995 (NSW), ss 108, 165, 165B

Cases
- Ewen v The Queen (2015) 250 A Crim R 544
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- Fox v Percy (2003) 214 CLR 118
- Hughes v The Queen (2017) 263 CLR 338
- R v Daly [1968] VR 257
- R v Markuleski (2001) 52 NSWLR 82
- R v Murray (1987) 11 NSWLR 12
- R v O'Donoghue (2005) 151 A Crim R 597
- R v Sorlie (1925) 42 WN (NSW) 152
- R v Winner (1995) 79 A Crim R 528
- Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") (1924) 20 Ll L Rep 140
- The Queen v Bauer (2018) 266 CLR 56