Citation: R v Hume (a pseudonym) (No. 2) [2022] NSWDC 434
Court: District Court of New South Wales
Date: 18 May 2022
Judge: Grant DCJ
Background
The accused, referred to by the pseudonym "Hume," was previously found unfit to stand trial in April 2021 and determined unlikely to become fit within the following 12 months. Following advice from the Director of Public Prosecutions that further proceedings would be taken, the matter proceeded to a special hearing in May 2022 under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The accused, an elderly man residing in an aged care facility, did not appear at the hearing due to practical difficulties with audio-visual link.
The Crown filed a three-count indictment alleging that the accused had sexually interfered with his granddaughter on three separate occasions between June and October 2019 at Griffith, when she was six years old. Each count alleged sexual intercourse with a child under 10 years of age, contrary to section 66A(1) of the Crimes Act 1900. The alleged conduct on each occasion involved the accused placing his finger in the complainant's vagina.
The special hearing was conducted as closely as possible to an ordinary criminal trial. The accused was taken to have entered a plea of not guilty to all three counts. Defence counsel conceded the limited evidence supported findings on counts 1 and 2, but contested count 3. The Crown did not oppose a not guilty finding on count 3.
Legal Issues
- Whether the conduct alleged in counts 1 and 2 was established on the limited evidence available under the special hearing regime
- Whether the evidence was sufficient to establish count 3 to the requisite standard of proof beyond reasonable doubt
- How to assess the reliability of a young complainant's evidence where parts of her account were internally inconsistent
Decision
The court conducted the special hearing on the documentary record, which included two Joint Investigative Response Team (JIRT) interview transcripts and supporting police materials. The complainant, now aged eight, gave unsworn evidence confirming the accuracy of her earlier JIRT answers, and was cross-examined on count 3.
On counts 1 and 2, the court found the complainant to be an honest, accurate, and reliable witness. Her accounts of the two incidents were clear and consistent across both JIRT interviews. The accused's account given to police was rejected beyond reasonable doubt as one that could not reasonably be true. A finding that the accused committed those two offences was recorded.
On count 3, the court identified a meaningful inconsistency in the complainant's evidence. In her first JIRT she said she thought the conduct had happened only two times, before later in the same interview suggesting it was more. The court accepted that the evidence in the second JIRT, referring to an incident during which the accused told the complainant to pull up her pants when "YiaYia" was approaching, could reasonably be inferred to relate to count 2 rather than a separate third occasion.
Grant DCJ acknowledged holding strong suspicions that count 3 was made out, but applied the criminal standard of proof directly: suspicion, even strong suspicion, is not proof beyond reasonable doubt. The court was therefore bound to record a not guilty finding on count 3.
Orders Made
- Counts 1 and 2: on the limited evidence available, the accused committed the offences
- Count 3: the accused was found not guilty
Key Takeaways
- Under Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a special hearing is conducted as nearly as possible to a criminal trial, with the accused taken to have pleaded not guilty, even where they do not appear in person
- The standard of proof in a special hearing remains proof beyond reasonable doubt, consistent with an ordinary criminal trial; a court that holds strong suspicions must nonetheless acquit if that standard is not met
- Internal inconsistency within a complainant's evidence can be a basis for rejecting a particular count, even where other counts based on that complainant's evidence are accepted as proven
- A finding under s 59(1)(c) of the Act that the accused "committed" an offence on the limited evidence available is distinct from a conviction, reflecting the modified nature of the special hearing process
- The District Court exercised its discretion under s 56(8) of the Act to permit the accused to be absent from the special hearing, having regard to his circumstances as a resident of an aged care facility
Legislation and Cases Referenced
Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 53, 56, 59
- Crimes Act 1900 (NSW), s 66A(1)
- Evidence Act 1995 (NSW), s 13(5)
Cases:
- R v Hume (a pseudonym) [2021] NSWDC 123 (the earlier fitness determination in the same matter)