AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
District Court 14 March 2024

R v Allen (a pseudonym)

[2024] NSWDC 64

Sexual offences

Citation: R v Allen (a pseudonym) [2024] NSWDC 64
Court: District Court of New South Wales
Date: 14 March 2024
Judge: Haesler SC DCJ

Background

The defendant, referred to by the pseudonym "Allen," was nearly 90 years old at the time of the hearing and suffered from dementia and other significant health conditions. He faced eight charges (including one alternative count) of child sexual offences alleged to have been committed between 1984 and 1992 against three complainants: two granddaughters (Debbie and Cara) and a step-grandson (Miller). The alleged offending took place at a south coast New South Wales town when the complainants were children.

In June 2023, a judge found Allen unfit to be tried, determining that he would not become fit within 12 months. The Director of Public Prosecutions elected to proceed under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), triggering a special hearing before Haesler SC DCJ. Allen was excused from attending due to his state of health, but was legally represented throughout.

The charges included acts of indecency, incitement to indecency, sexual intercourse without consent, and sexual intercourse with a child under authority. All alleged conduct fell under now-repealed or amended provisions of the Crimes Act 1900 (NSW) as they stood at the relevant times.

  • Whether a special hearing could properly proceed in circumstances where the defendant was unfit to be tried and unable to be present
  • What standard of proof and what verdicts were available to the court at a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
  • Whether the prosecution had proved beyond reasonable doubt, on the limited evidence available, that Allen committed each of the eight charged offences
  • How the court should account for the significant disadvantage caused by long delay, the defendant's age and incapacity, and the absence of witnesses who might have assisted the defence
  • Whether tendency evidence established in relation to the granddaughters could assist in assessing the evidence concerning Miller on Count 8

Decision

A special hearing under Part 4 Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 must be conducted as nearly as possible to a criminal trial. The defendant is taken to have pleaded not guilty, retains the right to legal representation, and may raise any defence available to a fit accused. The court's task is to determine, on the "limited evidence available," whether the prosecution has proved each element of each offence beyond reasonable doubt. The only verdicts open are not guilty, or a finding that on the limited evidence the defendant committed the offence charged.

On Counts 1 to 7 (involving the two granddaughters, Debbie and Cara), Haesler SC DCJ acknowledged considerable confidence that something sexual had occurred between the defendant and the girls. However, the court concluded that the prosecution had not proved beyond reasonable doubt precisely what acts had occurred, and therefore could not be satisfied that each critical element of the individual charges had been established. The benefit of that doubt was extended to the defendant on each of those counts, resulting in not guilty findings.

Count 8, concerning Miller, produced a different outcome. The court found Miller's evidence clear and believable. Miller had disclosed the abuse to a friend some years after it occurred, and his account was corroborated in part by his sister's evidence of other relevant behaviour by the defendant. The absence of Miller's parents, who might have supported or contradicted the account, was noted as important but not decisive given that the prosecution bore the onus of proof. The court also drew on its finding about something sexual having occurred with the girls to support a tendency by the defendant to have and act on the relevant sexual interest. Taking all of this into account, and making appropriate allowance for the defendant's inability to respond due to delay and infirmity, the court was satisfied beyond reasonable doubt on the limited evidence available that Count 8 was proved.

Orders Made

  • Counts 1 to 7: Not guilty of the offences charged
  • Count 8: On the limited evidence available, the defendant committed the offence charged
  • Count 8 stood over to 3 May 2024 at Wollongong District Court for further submissions regarding penalty

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is conducted as closely as possible to a criminal trial, with the prosecution bearing the full onus of proving each element of each charge beyond reasonable doubt, even on the "limited evidence available."
  • The District Court confirmed that a finding of unfitness to be tried does not prevent further proceedings: the DPP may elect to continue, and a special hearing must then be held, with verdicts confined to not guilty or a finding that the defendant committed the offence on the limited evidence available.
  • Where delay and a defendant's incapacity prevent meaningful response to allegations, courts conducting special hearings must make appropriate allowance for that disadvantage, though such allowance does not automatically foreclose a guilty finding if the evidence independently supports one.
  • Tendency evidence established in relation to one set of complainants can lawfully inform the assessment of a separate complainant's evidence, provided the relevant principles are applied and recorded as part of the court's reasoning.
  • Confidence that some sexual conduct occurred is insufficient for conviction: each critical element of each specific charge must be proved beyond reasonable doubt, and where that precision cannot be established, not guilty verdicts must follow even if the court harbours a general belief that offending took place.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 54, 58(8), 59
- Crimes Act 1900 (NSW), ss 61A, 61D, 61E, 66C, 77, 294, 578A
- Criminal Procedure Act 1986 (NSW), ss 292A, 292B, 292C, 293A
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Evidence Act 1995 (NSW), ss 144, 161A, 198

Cases
- Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
- IMM v The Queen [2016] HCA 14; (2016) 257 CLR 300
- The Queen v Bauer [2018] HCA 40; (2018) 266 CLR 56
- The Queen v GW [2016] HCA 6; (2016) 258 CLR 108
- TO v R [2017] NSWCCA 12
- W v R [2014] NSWCCA 110