R v Foster

[2021] NSWDC 725

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Foster [2021] NSWDC 725

Hearing dates:

16/8/21-23/8/21, 27/8/21

Date of orders:

27/8/21

Decision date:

27 August 2021

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

I find counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt and I convict the accused of those matters

Catchwords:

Crime – Judge alone trial – Verdict – Sexual touching of person with cognitive impairment - Sexual act towards person with cognitive impairment – Sexual intercourse with person with cognitive impairment

Legislation Cited:

Crimes Act 1900

Criminal Procedure Act 1986

Evidence Act 1995

Cases Cited:

Elomar & Ors v R [2014] NSWCCA 303

Jiang v R [2010] NSWCCA 277

R v Markuleski [2001] NSWCCA 290

Category:

Principal judgment

Parties:

NSW DPP – Crown
Paul Douglas Foster - Accused

Representation:

Counsel:
Mr R Munro for Crown
Mr S Ryan for Accused

File Number(s):

2019/260738

Publication restriction:

Non-publication order in relation to the identity of the complainant

Judgment on verdict

1. The accused, Mr Paul Foster, is charged with eight offences, five being offences of sexual touching of a person with a cognitive impairment under s 61KD of the Crimes Act 1900, one alleged offence of committing a sexual act towards a person with a cognitive impairment, that being under s 61KF of the Crimes Act, and two charges of sexual intercourse with a person with a cognitive impairment, those being under s 66F of the Crimes Act 1900. On 12 August 2021 I made an order by consent for the accused’s trial to be conducted by judge alone and on that day he was arraigned and his trial commenced.

2. The allegations involve one complainant, Ms P, who, at the relevant time, was a patient at Kaoriki House where she had been admitted from 12 March 2018 until 2 April 2019. Kaoriki House is a 12 bed psychiatric inpatient ward within Morisset Hospital, and the accused was a senior nurse there at the time.

3. In this judgment I record my verdicts and reasons for reaching those verdicts. In reaching my verdicts I must take into account any warning, direction or comment which, by law, would be required to be given or made to a jury.

ONUS AND STANDARD OF PROOF

4. The Crown bears the onus of proving the charges beyond reasonable doubt. The accused is presumed innocent unless or until the Crown satisfies me beyond reasonable doubt of his guilt in relation to any particular charge. Beyond reasonable doubt is, of course, the highest standard of proof known to our law. In assessing the evidence and in determining whether the Crown has satisfied me of the guilt of the accused, I must approach the task with an open and unbiased mind, act logically, rationally and not capriciously. Although in carrying out that task I should apply common sense, my verdict must be based only on the evidence called in the trial.

EVIDENCE BY AVL

5. The complainant gave evidence by audio visual link…