JW v The The King

JW was found unfit to be tried for various criminal offences, including aggravated sexual assault. A special hearing was conducted under section 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether JW had committed the offences. The hearing raised questions about the applicability of amendments to the Evidence Act 1995 (NSW) to the admission of tendency evidence and whether a recorded phone call, improperly obtained in breach of the Surveillance Devices Act, should be admitted. The primary judge declined to exclude the recorded phone call, and the Crown sought to use tendency evidence from a former sexual partner of JW. The appeal centred on whether the amendments to the Evidence Act applied to the special hearing and the weight given to JW's intellectual disability in sentencing.

The court considered whether the special hearing began when JW was found unfit to be tried or at the start of the special hearing itself, determining the applicability of the Evidence Act amendments. The court examined the considerations outlined in section 138 of the Evidence Act, assessing whether the probative value of the recorded phone call was outweighed by its improper procurement and the existence of other evidence. The court also scrutinised the weight given to JW's intellectual disability in the sentencing process, evaluating whether the limiting term imposed was manifestly excessive and whether the sentencing judge appropriately considered the principles of deterrence in such cases.

The court concluded that the special hearing began on the finding of unfitness to be tried, and thus, the amendments to the Evidence Act did not apply to the admission of tendency evidence. The court found that the primary judge did not err in admitting the recorded phone call, as the probative value outweighed the prejudicial effect. Regarding JW's intellectual disability, the court held that the sentencing judge adequately considered it and that the limiting term was not plainly wrong, unreasonably or unjust.

The appeal was dismissed, and the orders of the Supreme Court of New South Wales were affirmed.