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District Court 7 May 2025

R v Dunn

[2025] NSWDC 516

Sexual offences
MENTAL HEALTH CRIMINAL PROCEEDINGS PERSON UNFIT TO BE TRIED SPECIAL HEARING MENTAL IMPAIRMENT ADVANCED DEMENTIA

Citation: R v Dunn [2025] NSWDC 516
Court: District Court of NSW
Date: 7 May 2025
Judge: Wass SC DCJ

Background

The accused, a former service station attendant, faced allegations of historical child sexual offending against two complainants: a woman referred to as H and her sister C. The alleged offending against H spanned from approximately age five to ten, occurring at the family's service station and at the accused's home. The alleged offending against C involved a single incident at the service station.

Police first investigated the matter in 2002 following disclosures by H's childhood friend K. The investigation was suspended and only revived some 20 years later after H sought her own records and re-engaged police. By the time of the hearing, the accused had been found unfit to stand trial due to advanced dementia, a degenerative condition with no prospect of recovery.

The matter therefore proceeded as a special hearing under Part 4 Division 3 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The accused was taken to have pleaded not guilty on all counts, and the Crown was required to prove each offence beyond reasonable doubt on the limited evidence available.

Legal Issues

  • Whether the proceedings could be conducted fairly as a special hearing given the accused's advanced dementia, his inability to give evidence, and the forensic disadvantage caused by the delay in investigation
  • Whether the court was satisfied beyond reasonable doubt that the accused committed the offences alleged against H (counts 1 to 6)
  • Whether the court was satisfied beyond reasonable doubt that the accused committed the offence alleged against C (count 7)
  • What weight to give H's initial denials to police in 2002 in light of her later evidence and the accused's recorded admissions
  • Whether the alleged offending was rendered implausible by the proximity of parents and others during the events described

Decision

Forensic disadvantage direction

The court gave itself a strong forensic disadvantage direction, acknowledging that the long delay in the investigation and decisions not to gather certain evidence had prejudiced the accused's position, compounded by his advanced dementia rendering him unable to give evidence or provide adequate instructions to his lawyers (at [8]-[9], [11]). No criticism was directed at the complainants for not coming forward earlier.

Count 7: Allegation by C

The court was not satisfied beyond reasonable doubt that the offending against C occurred and returned a not guilty verdict on count 7 (at [32]). C's account escalated over time: in 2002 she described the accused merely asking to touch her breasts, but by 2024 her statements included him touching her bottom on multiple occasions, a detail absent from all earlier accounts despite police asking her to recall everything (at [29]-[31]). The court found her explanation for these omissions insufficiently accurate or honest to establish guilt beyond reasonable doubt (at [31]-[32]).

Counts 1 to 6: Allegations by H

The court accepted H's evidence as sufficiently honest and accurate on each count, supported by corroborating complaint evidence and the accused's own recorded admissions (at [171]). In September 2022, H made a pretext call to the accused, which was recorded. The accused made clear admissions of ongoing sexual offending against H from when she was young. The court found his long-term memory remained intact at that point despite early dementia affecting short-term recall, leaving no doubt about the reliability of those admissions (at [140]-[145]).

H's initial denials to police in 2002 were addressed directly. The court rejected the submission that those denials indicated the offending had not occurred, finding instead that H lied out of fear, conflicted feelings toward the accused, and concern about getting him into trouble (at [146]-[149]). Her later candour about having lied, and her explanations for her reticence as a ten-year-old taken unexpectedly from class, were accepted as credible.

Corroboration and implausibility

The eyewitness account given by K to police in 2002 corroborated H's evidence regarding count 6, which concerned an incident at the accused's home. The court found K honest and accurate in her 2002 account, notwithstanding her significantly reduced recollection at trial (at [60], [80]). H's complaints to former intimate partners, including flashbacks during moments of intimacy, provided further corroboration of sexual offending occurring (at [139]). The court rejected the submission that offending in close proximity to H's parents and others was inherently implausible, observing that ongoing abuse commonly occurs in close proximity to others where a child has been groomed into silence (at [163]-[165]).

Orders Made

  • Not guilty on count 7 (allegation by C): see [32]
  • Guilty on counts 1 to 6 (allegations by H): see [171]-[172]

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 must be conducted as nearly as possible to a criminal trial, with the Crown still required to prove each offence beyond reasonable doubt, even where the accused cannot give evidence or provide meaningful instructions due to advanced dementia (at [5]-[9]).

  • Where a complainant's account escalates materially over time and earlier omissions are inadequately explained, particularly where the complainant was specifically asked to recall all relevant events, a court may find the evidence insufficient to establish guilt beyond reasonable doubt (at [29]-[32]).

  • Recorded admissions by an accused carry significant evidentiary weight in a special hearing; where the accused's long-term memory remained demonstrably intact at the time of the admissions despite early-stage dementia, those admissions can corroborate a complainant's account and support findings of guilt (at [140]-[145]).

  • The District Court confirmed the established principle, consistent with Bolton v R [2023] NSWCCA 211, that allegations of child sexual offending are not rendered implausible merely because the conduct occurred in close proximity to adults or other children; grooming and normalisation of behaviour can explain why offending goes undetected (at [163]-[165]).

  • An earlier complainant witness with significantly reduced present recollection may still be accepted as honest and accurate where their original account to police was detailed and contemporaneous, and where the passage of time and the nature of the events adequately explain the memory loss (at [60]).

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 56(1)-(2),(5)-(6)

Cases
- Bolton v R [2023] NSWCCA 211
- R v Markuleski (2001) 52 NSWLR 82
- RE v R [2024] NSWCCA 180
- Sita v R [2022] NSWCCA 90
- VP v R [2021] NSWCCA 11