R v Antin (a pseudonym) - [2021] NSWDC 532

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Antin (a pseudonym) [2021] NSWDC 532
Hearing dates: 27 September 2021, 28 September 2021,
29 September 2021
Date of orders: 05 October 2021
Decision date: 05 October 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
On the limited evidence available the defendant committed the offences charged as Counts 5, 6, 8 and 9. Not Guilty Count 7

Catchwords:
CRIME- Sexual intercourse with person under age of 10 years (DV) - Indecent assault where victim under the age of 10 years - Assault with intent sexual intercourse child over 10 under 14 - Indecent assault person under 16 years of age
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing - principles to be applied
MENTAL HEALTH - Special hearing - defendant aged 90 - suffers significant cognitive impairment dementia- unable to participate – offences against granddaughter - offences against child neighbour - hearing using AVL - interpreter required - tendency – complaint evidence – delay - context evidence attempt offence proof of intention - alternative count - good character - assessment of evidence

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1985
Evidence Act 1995
Evidence (Audio and Visual Links) Act 1998
Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:
R v Mr Antin, unreported, Wollongong District Court 31/3/2021
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Category: Principal judgment
Parties: Mr Antin (the accused)
Director of Public Prosecutions
Representation:
Counsel:
Mr S Fraser, Public Defender (for the accused)
Ms K Ratcliffe, Crown Prosecutor
Solicitors:
Morrisons Law (for the accused)

File Number(s): 2020/179635; 2020/46178
Publication restriction: Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. 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 accused and the complainants who were at the relevant times children. Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes.

Introduction

Mr Antin is 90 years old. He has dementia and other health problems. He has been charged with a number of serious sexual offences against 3 children. On 31 March 2021 he was found unfit to be tried: R v Mr Antin, unreported, Wollongong District Court 31/3/2021, per Acting Judge Woods QC. The Director of Public Prosecutions (DPP) then advised that further proceedings will be undertaken against Mr Antin: s54 Mental Health and Cognitive Impairment Forensic Provisions Act 2020.

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 Antin (a pseudonym)

Details

AGLC: R v Antin (a pseudonym) [2021] NSWDC 532
Case: [2021] NSWDC 532
Decision Date: 05 October 2021

CaseChat Overview and Summary

The case of R v Antin, heard in an Australian court, involves a defendant charged with multiple offences, including sexual intercourse with a person under the age of 10 years, indecent assault where the victim was under the age of 10 years, and assault with intent to have sexual intercourse with a child over 10 and under 14. The defendant was also charged with indecent assault of a person under 16 years of age. The defendant, referred to as Antin for privacy reasons, is a 90-year-old man who suffers from significant cognitive impairment and dementia, rendering him unfit to be tried. The court was required to conduct a special hearing to determine whether Antin was fit to be tried, applying relevant principles in the context of criminal proceedings and mental health. The hearing also addressed the use of an audio-visual link (AVL) for Antin's participation and the admissibility of certain types of evidence, including complaints, delay, and context evidence.

The court faced several legal issues, including whether Antin's significant cognitive impairment and dementia meant he could not participate in the trial and thus was unfit to be tried. Further, the court had to determine the admissibility of various pieces of evidence, including the use of an interpreter and the nature of evidence related to complaints, delay, and context. The court also had to consider the proof of intent in relation to the alternative count of assault with intent to have sexual intercourse and assess the defendant's good character as a factor in the overall evidence evaluation. The court's decision hinged on balancing the need to ensure a fair trial with the necessity of protecting the rights of the defendant and the victims.

After evaluating the evidence presented, the court concluded that, despite the defendant's significant cognitive impairment and dementia, the limited evidence available demonstrated that Antin committed the offences charged in Counts 5, 6, 8, and 9. These counts related to sexual intercourse with a person under the age of 10 years and indecent assault where the victim was under the age of 10 years. However, the court found Antin not guilty of the charge in Count 7, which involved indecent assault on a person under 16 years of age. The court's reasoning was based on a careful consideration of the evidence and the principles governing the fitness of the defendant to be tried. The final orders of the court reflect the findings and the determination of guilt on specific counts.

Orders

Orders of the court

On the limited evidence available the defendant committed the offences charged as Counts 5, 6, 8 and 9. Not Guilty Count 7

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Antin (a pseudonym) [2021] NSWDC 532
Hearing dates:	27 September 2021, 28 September 2021, 29 September 2021
Date of orders:	05 October 2021
Decision date:	05 October 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	On the limited evidence available the defendant committed the offences charged as Counts 5, 6, 8 and 9. Not Guilty Count 7
Catchwords:	CRIME- Sexual intercourse with person under age of 10 years (DV) - Indecent assault where victim under the age of 10 years - Assault with intent sexual intercourse child over 10 under 14 - Indecent assault person under 16 years of age MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing - principles to be applied MENTAL HEALTH - Special hearing - defendant aged 90 - suffers significant cognitive impairment dementia- unable to participate – offences against granddaughter - offences against child neighbour - hearing using AVL - interpreter required - tendency – complaint evidence – delay - context evidence attempt offence proof of intention - alternative count - good character - assessment of evidence
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1985 Evidence Act 1995 Evidence (Audio and Visual Links) Act 1998 Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Cases Cited:	R v Mr Antin, unreported, Wollongong District Court 31/3/2021 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Category:	Principal judgment
Parties:	Mr Antin (the accused) Director of Public Prosecutions
Representation:	Counsel: Mr S Fraser, Public Defender (for the accused) Ms K Ratcliffe, Crown Prosecutor Solicitors: Morrisons Law (for the accused)
File Number(s):	2020/179635; 2020/46178
Publication restriction:	Pursuant to s15A Children (Criminal Proceedings) Act 1987 and s578A Crimes Act 1900, there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child victim. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.