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District Court 18 June 2025

R v WS

[2025] NSWDC 219

Sexual offences
CRIME SPECIAL HEARING PREVIOUS TRIAL SUBSEQUENT FINDING OF UNFITNESS DIRECTOR ELECTED SPECIAL HEARING TENDENCY EVIDENCE

Citation: R v WS [2025] NSWDC 219
Court: District Court of New South Wales
Date: 18 June 2025
Judge(s): Grant DCJ

Background

The accused, referred to by the pseudonym WS to protect the identity of complainants who wish to remain anonymous, is an elderly retired dentist who practised in Armidale and surrounding regional NSW areas from the 1960s until around 2000. He was a trained hypnotherapist and used relaxation and hypnosis techniques as part of his dental practice. The Crown alleged that he exploited these techniques to commit acts of indecency and sexual assault upon teenage and pre-teenage boys during appointments spanning from 1973 to 1991.

Following convictions at a 2017 trial, the Court of Criminal Appeal quashed those convictions in 2021 and ordered a retrial. Before that retrial could proceed, the accused was found unfit to stand trial due to dementia. The Director of Public Prosecutions elected to proceed by way of a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, conducted before Grant DCJ commencing March 2025.

The special hearing involved a 35-count indictment relating to seven complainants, including the four original complainants (Phillip Wright, Joseph Wright, SF, and ST) and three additional complainants (CC, IM, and MH). The allegations spanned practices in Walcha, Armidale, and Grafton. The accused appeared via audiovisual link with adjusted sitting hours to accommodate his cognitive limitations.

Legal Issues

  • Whether the Crown proved beyond reasonable doubt, on the "limited evidence available" under the special hearing regime, that the accused committed each of the 35 charged offences
  • Whether the accused had a tendency to have a sexual interest in teenage and pre-teenage boys, and if so, whether that tendency evidence was sufficiently cogent to prove guilt on any charged count
  • Whether the evidence of each complainant was sufficiently honest and accurate to sustain a conviction, given the historical nature of the allegations, significant delays in complaint, and expert evidence on memory and hypnosis
  • Whether the accused's responses during a 2014 recorded confrontation with Phillip Wright constituted lies capable of affecting his credibility
  • Whether expert evidence from Professor Barnier and Dr Roberts concerning memory, hypnosis, and psychiatric conditions undermined the reliability of particular complainants

Decision

The special hearing framework

The court conducted the proceedings as nearly as possible to a criminal trial, with the accused presumed not guilty and the Crown bearing the full burden of proof beyond reasonable doubt on the limited evidence available (at [14]-[20]). A finding that the accused "committed" an offence does not constitute a conviction but triggers further review by the Mental Health Review Tribunal (at [20]).

Tendency finding

The court was satisfied that the accused had a tendency to have a sexual interest in teenage and pre-teenage boys, based on the evidence of multiple tendency witnesses who described physical contact during hypnosis or relaxation sessions (at [140]). However, the court found that the tendency evidence, while establishing the tendency, was not sufficiently cogent to prove guilt beyond reasonable doubt on any individual charged count (at [141]). The acts described by tendency witnesses differed materially in nature and seriousness from the acts alleged by most complainants (at [161]).

Counts 1 to 8 (CC, Walcha): The court found CC's evidence fundamentally undermined by the accused's appointment book, which showed CC attended for fillings on 13 and 15 February 1973, directly contradicting CC's account that he first attended in June or July 1973 following a winter rugby injury (at [769]-[773]). The central pillar of CC's evidence — the rugby accident as the occasion for dental treatment — was demolished by independent records. The court also accepted the evidence of the dental nurse that the caravan layout made the alleged conduct implausible (at [775]-[776]), and found CC's memory was likely contaminated by internet research following the accused's 2017 convictions (at [777]-[778]). The accused was found not guilty of Counts 1 to 8 (at [781]).

Counts 9 to 16 (Phillip Wright, Armidale): The court found Phillip Wright an unreliable and evasive witness who repeatedly refused to concede inconsistencies, even when confronted with objective documentary evidence (at [608]-[616]). His account was contradicted in material respects by Father O'Brien, whose evidence the court accepted as credible, establishing that Phillip's complaint to him concerned only the school counsellor Mr Huggins, not the accused (at [330]-[331]). The court also found implausible Phillip's account that the accused and Mr Huggins jointly abused him at the surgery (at [661]-[662]), and found the accused's responses of "Did I?" and "Was I?" in the 2014 recorded conversation were genuine expressions of confusion rather than lies (at [358]-[367]). The accused was found not guilty of Counts 9 to 16 (at [662], [672]).

Counts 17 to 27 (Joseph Wright, Armidale): Joseph Wright's evidence was found unreliable due to his serious psychiatric conditions, including a differential diagnosis of paranoid schizophrenia and schizoaffective disorder, severe depression with psychotic features, and dissociative disorder (at [696]). Expert evidence from Professor Barnier and Dr Roberts established that his capacity to give accurate evidence on matters of fact was likely compromised (at [702]-[706]). The court also found the allegations implausible because the accused was in Uralla on Thursdays during 1981, yet Joseph alleged all offences occurred on Thursdays at the Barney Street surgery (at [594]-[595]). Further, the Barney Street surgery was during after-school hours a busy place frequented by the accused's children, wife, staff, and patients, making the privacy required for the alleged offending implausible (at [591]-[596]). The accused was found not guilty of Counts 17 to 27 (at [735]).

Count 28 (ST, Armidale): The court found ST a generally satisfactory witness but identified several matters raising reasonable doubt, including contradictions between ST's account and his mother's evidence, ST's uncertainty about key details including whether his eyes were open or closed during the alleged touching, and the absence of complaint until the accused's charges were publicised (at [739]-[747]). The court was not satisfied beyond reasonable doubt that any touching was not accidental. The accused was found not guilty of Count 28 (at [747]).

Counts 29 and 30 (SF, Armidale): The court found SF prone to exaggeration and unwilling to concede inconsistencies. Most significantly, SF was mistaken by approximately three years about the date of his tooth extraction, yet maintained his account with confidence (at [753]). The court found it open to reason that SF had reconstructed or exaggerated other aspects of his account, and that any touching of the genital area may have been accidental (at [757]-[760]). The accused was found not guilty of Counts 29 and 30 (at [764]).

Counts 31 to 33 (IM, Armidale): The court found IM an unreliable witness on multiple grounds, including a description of the accused as having a thick European accent when the accused was Australian-born and had no such accent, internal inconsistencies across his statements and evidence, logistical difficulties with his account of how the alleged touching occurred, and the introduction of new details absent from earlier statements (at [783]-[798]). Critically, the court found there was a real possibility of truth in the evidence of JLH, IM's former partner, who gave evidence that IM told her he intended to make false allegations against the accused to obtain compensation (at [801]-[803]). The court found IM was not forthcoming about his relationship with JLH, further undermining his credibility (at [804]). The accused was found not guilty of Counts 31 to 33 (at [805]).

Counts 34 and 35 (MH, Grafton): MH was found to be a truthful and reliable witness (at [815]). His account of how he came to recall the events — triggered by an incident involving his children — struck the court as genuine and was supported by his wife's evidence (at [815]). While the court acknowledged the risk that MH's account had been contaminated by communications with Phillip Wright, the court found that risk minimal given the strong impression MH made as a witness (at [817]). The court accepted beyond reasonable doubt that the accused placed his hand on or under MH's penis while MH lay on his back on a mattress during a massage session (Count 34), and that the accused massaged MH's bottom and groin area beneath his clothing (Count 35) (at [817]-[818]). The court found on the limited evidence available that the accused committed Counts 34 and 35 (at [820]).

Orders Made

  • Verdicts of not guilty entered in relation to Counts 1 to 33 on the indictment
  • On the limited evidence available, the court found the accused committed Counts 34 and 35
  • The accused's bail was continued
  • Sentencing adjourned to a date to be agreed by the parties

Key Takeaways

  • In a special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, the Crown must still prove each element of each charged offence beyond reasonable doubt on the "limited evidence available," and the accused retains all the protections of a conventional criminal trial, including the presumption of innocence and the right to the benefit of any reasonable doubt (at [14]-[20]).

  • A finding that a tendency exists does not of itself provide sufficient evidence to prove guilt beyond reasonable doubt on any particular charge; the tendency evidence must also be cogent enough to bear meaningfully on the individual count under consideration (at [140]-[141]).

  • Expert evidence on memory, hypnosis, and psychiatric conditions can be central to the assessment of witness reliability in historical sexual offence cases. The District Court accepted the opinions of Professor Barnier and Dr Roberts that hypnosis can distort memory, that reconstruction of distant memories is common, and that serious psychiatric conditions can compromise a witness's capacity to give accurate evidence on matters of fact (at [686]-[708]).

  • Where independent documentary evidence — such as an appointment book — directly contradicts the foundational narrative of a complainant's account, that inconsistency may be insurmountable and warrant a finding that the complainant is not a credible or reliable witness, even where the Crown's case depends solely on that complainant's evidence (at [769]-[780]).

  • The busy, family-frequented nature of a workplace during the hours when alleged offences are said to have occurred can render those allegations implausible and generate reasonable doubt, even where a tendency to commit such acts has been proved (at [591]-[596]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases
- AR v R [2025] NSWCCA 22
- Banditt v The Queen [2005] HCA 80
- Fleming v The Queen (1998) 197 CLR 250
- Fox v Percy (2003) 214 CLR 118
- IMM v The Queen [2016] HCA 14
- Jovanovic v R (1997) 42 NSWLR 520
- Liberato v The Queen (1985) 159 CLR 507
- Mahmood v Western Australia (2008) 232 CLR 397
- R v Bauer [2018] HCA 40
- R v WS [2021] NSWCCA 124
- R v Markuleski (2001) 52 NSWLR 82
- Wardell v R [2025] NSWCCA 26
- Zoneff v The Queen (2000) 200 CLR 234