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District Court 2 May 2025

R v NP

[2025] NSWDC 160

Sexual offences

Citation: R v NP [2025] NSWDC 160
Court: District Court of New South Wales
Date: 2 May 2025
Judge: Montgomery DCJ

Background

The defendant, an 80-year-old man, was found unfit to be tried due to advanced physical and mental incapacity. A Special Hearing was conducted under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which provides a mechanism for determining whether the available evidence establishes that an unfit defendant committed the charged offences. The defendant was excused from attending and was represented by counsel throughout.

The complainant, the defendant's granddaughter, was approximately nine years old at the time of the alleged offending. The allegations arose during visits to the defendant's home, where the complainant's father regularly performed maintenance and yard work. On those occasions, the complainant typically spent time inside the house with the defendant while her father mowed the lawns outside.

Two charges were brought. Count 1 alleged a sexual act toward a child under ten years of age, namely that the defendant lifted his shirt to expose his genitalia to the complainant in his living room. Count 2 alleged sexual intercourse with a child under ten years, involving penile penetration in the defendant's bedroom. The defendant denied both acts occurred.

  • Whether the Special Hearing should proceed by judge alone and what the applicable standard and framework required
  • Whether the complainant was competent to give sworn evidence, and what weight could properly be given to her testimony given her age, the inconsistencies in her account, and her stated lack of memory of the alleged events
  • Whether, on the limited evidence available, the Crown proved beyond reasonable doubt that the defendant committed the acts charged in Count 1 and Count 2
  • How complaint evidence that was inconsistent with the complainant's oral evidence affected the overall assessment of reliability

Decision

Montgomery DCJ conducted the Special Hearing as a judge-alone trial, directing himself as he would direct a jury. He confirmed that the defendant was taken to have pleaded not guilty, that the proceeding was to be conducted as closely as possible to an ordinary trial, and that the defendant's unfitness was not to prejudice him beyond what his incapacity already entailed. The Crown bore the onus of proving each element of both offences beyond reasonable doubt.

The court found the complainant competent to give sworn evidence. A witness intermediary assessment, which was uncontested, confirmed she could understand and answer questions, clarify and refute propositions, and comprehend time concepts and higher-level language. Montgomery DCJ observed that her evidence was given without apparent confusion during the AVL hearing. The court directed itself that the complainant's evidence was not automatically unreliable by reason of her age alone, while acknowledging that appropriate allowances had to be made for her shorter attention span and limited sophistication compared to most adults.

Despite those findings on competence, the court concluded that the complainant's evidence lacked the reliability and cogency necessary to establish guilt beyond reasonable doubt. The complainant stated in oral evidence that she could not recall the alleged events. Her account was found to be internally inconsistent regarding any prior sexualised conduct, and materially inconsistent with complaint evidence. The court also found her description of the alleged specific acts lacked the detail expected of a lived experience from a nine-year-old victim of sexual assault.

Montgomery DCJ drew on the New South Wales Court of Appeal's observations in Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 regarding the difficulty of relying on a single piece of testimonial evidence where other aspects of the same witness's evidence are demonstrably unreliable. Although that passage arose in a civil context, the court applied the underlying reasoning to explain why the complainant's evidence, taken as a whole, did not demonstrate sufficient cogency. The defendant's good character was also noted as a further consideration bearing against the Crown's case. Both counts were found not proved beyond reasonable doubt.

Orders Made

  • Count 1: Not Guilty
  • Count 2: Not Guilty

Key Takeaways

  • A Special Hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) must be conducted as closely as possible to an ordinary trial, with the defendant taken to have pleaded not guilty and entitled to the benefit of all defences available to a fit accused.
  • Competence to give sworn evidence under s 13 of the Evidence Act 1995 (NSW) does not automatically resolve questions of reliability; a child witness may be competent yet provide evidence insufficiently cogent to establish guilt beyond reasonable doubt.
  • Where a complainant states in oral evidence that she does not recall the alleged events, and where her account is both internally inconsistent and inconsistent with complaint evidence, the cumulative effect can undermine the reliability of the evidence even in the absence of a legal requirement for corroboration.
  • The District Court applied civil appellate guidance from Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72 concerning the rarity of cases where a single piece of testimonial evidence alone can be determinative, and the need for careful explanation when other aspects of the same witness's evidence are unreliable.
  • Good character of a defendant remains a relevant consideration in the overall assessment of whether the Crown has established guilt beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 36, 56, 59
- Crimes Act 1900 (NSW), ss 66A(1), 66DC(a)
- Evidence Act 1995 (NSW), s 13
- Criminal Procedure Act 1986 (NSW), s 133

Cases:
- Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72
- Jones v Dunkel (1959) 101 CLR 298