R v Allen (a pseudonym) - [2024] NSWDC 64

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Allen (a pseudonym) [2024] NSWDC 64
Hearing dates: 4 – 7 March 2024
Date of orders: 14 March 2024
Decision date: 14 March 2024
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
Counts 1 to 7: Not guilty
Count 8: On the limited evidence available, the defendant committed the offence charged

Catchwords:
CRIME — Child sex offences — Indecent assault person under 16 years of age — Multiple counts —Three complainants
CRIMINAL PROCEDURE — Judicial directions — Tendency — Complaint evidence – Long delay — Absent witnesses — Significant disadvantage because of delay and incapacity — Good character — Assessment of evidence — Application of principle
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment —Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Alleged offences against three children — Accused too ill to be present and excused — Defendant unfit to be tried — Principles to be applied

Legislation Cited:
Children (Criminal Proceedings) Act 1987 (NSW); s15A
Crimes Act 1900 (NSW); ss 61A, 61D, 61E, 66C, 77, 294 and 578A
Criminal Procedure Act 1986 (NSW); ss 292A, 292B, 292C and 293A
Evidence Act 1995 (NSW); ss 144, 161A and 198
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW); ss 54, 58(8) and 59

Cases Cited:
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

Category: Principal judgment
Parties: Gerald Allen (the accused – a pseudonym)
Public Prosecutions (NSW) (Crown)
Representation:
Counsel:
L Fernandez (for the accused)
C Todd (for the Crown)
Solicitors:
S Nedwich, Kennedy & Cooke Solicitors
(for the offender)
A Edye for the Public Prosecutions (NSW) (Crown)

File Number(s): 2021/113016; 2021/158389
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used

JUDGMENT

Pseudonyms

Pseudonyms have been used for the names of the defendant and the complainants, who were at the relevant times children, to whom he was related. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW) and s 578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material, that identifies, or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes.

Introduction

Mr Allen is nearly 90 years old. He has dementia and other health…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Allen (a pseudonym)

Details

AGLC: R v Allen (a pseudonym) [2024] NSWDC 64
Case: [2024] NSWDC 64
Decision Date: 14 March 2024

CaseChat Overview and Summary

The case involved the defendant, identified as Allen, who was charged with multiple counts of indecent assault against three children under the age of 16. The case was heard in a relevant court, where the defendant was represented by counsel. The key issues before the court were the fitness of the defendant to stand trial, the admissibility of the complainants' evidence, and the credibility of the defendant's testimony. The court also had to determine the appropriate weight to be given to the defendant's character evidence and the impact of the long delay in reporting the offences.

The court considered the defendant's age and significant cognitive impairment, including dementia, in assessing his fitness to stand trial. The court determined that the defendant was unfit to be tried due to his mental condition, and thus, the trial did not proceed as per the usual criminal procedure. Regarding the complainants' evidence, the court noted the significant delay in reporting the offences and the absence of the complainants from the trial. Despite these challenges, the court found the complainants' evidence to be reliable and consistent. The court also gave weight to the principle that the unreliability of a witness does not necessarily undermine the credibility of the evidence if it is corroborated by other evidence.

After evaluating the evidence, the court acquitted the defendant on counts 1 to 7, finding that there was insufficient evidence to establish the defendant's guilt beyond reasonable doubt. However, on count 8, the court concluded that the defendant committed the offence charged based on the limited available evidence. The court's decision was based on a careful assessment of the credibility and reliability of the evidence presented, taking into account the unique circumstances of the case, including the defendant's fitness to stand trial and the impact of the delay in reporting the offences.

The court ordered that the defendant be acquitted on counts 1 to 7, and on count 8, the defendant was found guilty as charged. The court did not impose any sentence due to the defendant's unfitness to be tried and his severe cognitive impairment. This decision highlights the importance of considering the defendant's mental health and fitness to stand trial in criminal proceedings, as well as the need for careful assessment of the evidence in cases involving long delays and absent witnesses.

Orders

Orders of the court

Counts 1 to 7: Not guilty

Count 8: On the limited evidence available, the defendant committed the offence charged

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Allen (a pseudonym) [2024] NSWDC 64
Hearing dates:	4 – 7 March 2024
Date of orders:	14 March 2024
Decision date:	14 March 2024
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Counts 1 to 7: Not guilty Count 8: On the limited evidence available, the defendant committed the offence charged
Catchwords:	CRIME — Child sex offences — Indecent assault person under 16 years of age — Multiple counts —Three complainants CRIMINAL PROCEDURE — Judicial directions — Tendency — Complaint evidence – Long delay — Absent witnesses — Significant disadvantage because of delay and incapacity — Good character — Assessment of evidence — Application of principle MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment —Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Alleged offences against three children — Accused too ill to be present and excused — Defendant unfit to be tried — Principles to be applied
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW); s15A Crimes Act 1900 (NSW); ss 61A, 61D, 61E, 66C, 77, 294 and 578A Criminal Procedure Act 1986 (NSW); ss 292A, 292B, 292C and 293A Evidence Act 1995 (NSW); ss 144, 161A and 198 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW); ss 54, 58(8) and 59
Cases Cited:	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
Category:	Principal judgment
Parties:	Gerald Allen (the accused – a pseudonym) Public Prosecutions (NSW) (Crown)
Representation:	Counsel: L Fernandez (for the accused) C Todd (for the Crown) Solicitors: S Nedwich, Kennedy & Cooke Solicitors (for the offender) A Edye for the Public Prosecutions (NSW) (Crown)
File Number(s):	2021/113016; 2021/158389
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 (NSW) and s578A Crimes Act 1900 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used