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District Court 29 September 2023

R v JH (a pseudonym)

[2023] NSWDC 391

Sexual offences
CRIME SPECIAL HEARING AGGRAVATED SEXUAL ASSAULT AGGRAVATED INDECENT ASSAULT

Citation: R v JH (a pseudonym) [2023] NSWDC 391
Court: District Court of New South Wales
Date: 29 September 2023
Judge: Newlinds SC DCJ

Background

The defendant, an 87-year-old man, faced five charges of sexual offences against his granddaughter, referred to as EH, when she was aged seven to eight years old. The alleged offending occurred between June 2018 and December 2019 at the defendant's home, where EH and her brother were staying as part of a shared custody arrangement following their parents' separation. The alleged incidents took place in EH's upstairs bedroom while her father and brother were absent from the home, with the defendant's wife remaining confined to the downstairs area due to mobility and vision impairments.

A fitness inquiry conducted in September 2022 found the defendant unfit to be tried, due to dementia likely caused by Alzheimer's disease, and unlikely to become fit within 12 months. The matter therefore proceeded to a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act), conducted before Newlinds SC DCJ on 30 August 2023.

A special hearing operates as closely as possible to an ordinary criminal trial. Because no jury election was made, the hearing proceeded before the judge alone, with the defendant taken to have pleaded not guilty.

  • Whether the Crown had proved, beyond reasonable doubt, the factual elements of each of the five charges against the defendant under the special hearing framework.
  • Whether the evidence of EH, given in two recorded police interviews, was sufficient to establish the elements of aggravated indecent assault (four counts) and sexual intercourse with a child under 10 (one count).
  • Specifically in relation to count 4 (penile-vaginal penetration), whether the evidence supported a finding of actual penetration beyond reasonable doubt, or whether the alternative count 5 (aggravated indecent assault) was established instead.

Decision

The court accepted EH's evidence as given in her two police interviews as the primary basis for its findings. For counts 1 and 2, the court was satisfied beyond reasonable doubt that the defendant had sucked EH's nipples (count 1) and placed his penis on her vagina and moved up and down (count 2). These findings were supported by EH's consistent and detailed descriptions across both interviews.

For counts 3 and 4, the court found count 3 established beyond reasonable doubt, based on EH's description of a second incident in which she climbed on top of the defendant and their bodies moved together. However, the court experienced genuine uncertainty regarding count 4, the charge of sexual intercourse with a child under 10 years.

The difficulty with count 4 centred on two related issues. First, the court was uncertain whether EH was describing the same incident referred to in count 3 or a separate one. Second, EH gave contradictory answers across both interviews about whether she was wearing underpants at the relevant time. The court reasoned that if she was wearing underwear, actual penile-vaginal penetration was highly unlikely. Proving penetration beyond reasonable doubt would have required a chain of inferences that the court found unsafe to draw.

The alternative charge in count 5 (aggravated indecent assault) was, however, clearly established. EH's first interview unambiguously described the defendant placing his penis "on" or "near" her vagina, which the court found plainly constituted an indecent assault. The court was satisfied beyond reasonable doubt that all elements of count 5 had been proved.

Orders Made

  • The court found that the defendant committed the offences charged in counts 1, 2, 3, and 5 on the indictment.
  • The court found the defendant not guilty of count 4 (sexual intercourse with a child under 10 years).
  • The matter was stood over for the parties to prepare material for the court to set limiting terms for the offences proved, as required by section 63 of the Act.

Key Takeaways

  • Under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, a special hearing proceeds as closely as possible to an ordinary criminal trial, with the unfit defendant taken to have pleaded not guilty and the standard of proof remaining beyond reasonable doubt.
  • The District Court distinguished between direct evidence of sexual contact and the inferential steps required to establish actual penetration. Where those inferences were insufficiently supported by the evidence, the court declined to make a finding of guilt on the more serious charge.
  • Contradictory answers from a complainant about a factual matter bearing directly on the physical elements of an offence can create reasonable doubt sufficient to defeat a charge, even where the complainant's evidence is otherwise accepted.
  • Where a more serious charge cannot be proved beyond reasonable doubt, an alternative charge arising from the same facts may still be established. Here, count 5 was found proven on the same evidence that was insufficient to sustain count 4.
  • A finding that a defendant "committed the offence" in a special hearing does not result in a conviction in the ordinary sense. The next step under the Act is the setting of a "limiting term," a legislative mechanism that operates differently from conventional sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 66A(1) (sexual intercourse with a child under 10) and 61M(2) (aggravated indecent assault)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 44, 47(1)(b), 47(3), 53(2), 54-62, 56(1), 56(3), 56(5), 56(9), 59(2), 63

Cases cited: No cases were cited in the judgment.