R v Hume (a pseudonym) (no. 2)
[2022] NSWDC 434
•18 May 2022
District Court
New South Wales
Medium Neutral Citation: R v Hume (a pseudonym) (no. 2) [2022] NSWDC 434 Hearing dates: 16 May 2022 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Guilty of counts 1 and 2, not guilty of count 3
Catchwords: CRIMINAL LAW – accused unfit to stand trial – special hearing – sexual intercourse with child under 10
Legislation Cited: Crimes Act 1900
Evidence Act 1995.
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Category: Principal judgment Parties: Regina (Crown)
Hume (Accused)Representation: Counsel:
Solicitors:
Mr T Bailey (Crown)
Ms C Mendes (Accused)
Solicitor for the Director of Public Prosecutions NSW (Crown)
Legal Aid Commission (Accused)
File Number(s): 2019/00350425 Publication restriction: Non-publication order in relation to the name of the accused and the complainants.
JUDGMENT
Introduction
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On 15 April 2021, pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act), I found Mr Hume unfit to stand trial and that he would not become fit for trial within 12 months: R v Hume (a pseudonym) [2021] NSWDC 123.
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Having found the accused unfit to be tried and satisfied that he will not during the next twelve months become fit, he is to be dealt with under Division 3 of the Act.
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Pursuant to s 53(2), the Court has received advice from the DPP that further proceedings will be taken in respect of the offences. As a result of that advice, a special hearing was conducted on Monday 16 May 2022. The Crown filed a three-count indictment and called for trial the accused.
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The hearing was conducted as nearly as possible as if it were a trial of criminal proceedings: s 56(1).
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The accused was represented by Ms Mendes, public defender, an Australian legal practitioner: s 56(2).
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The accused was taken to have entered a plea of not guilty to the offences charged without formal arraignment: s 56(5).
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The accused is a resident in an aged care facility. There were difficulties in having him appear by audio-visual link from that facility. Ms Mendes, without objection from the Crown, sought to have him not appear at the special hearing. I acceded to this request; it was appropriate in the circumstances: s 56(8).
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Without objection, the Crown tendered 14 documents, namely:
Indictment
transcript of SR, 5 November 2019
transcript of SR, 13 March 2020
statement of EH, 21 November 2019
statement of JR, 4 November 2019.
Statement of Senior Constable Jed Anderson, 7 November 2019
surveillance device warrant and transcript, 7 November 2019.
ERISP transcript, 7 November 2019.
Custody management record, 7 November 2019.
statement of officer-in-charge, Kendrew, 19 November 2019.
photograph 10 round/TV area, 12 November 2019.
photograph 11 accused’s recliner chair, 12 November 2019.
Fitness determination (R v Hume, pseudonym) [2021] NSWDC 123, 15 April 2021.
Pt 9/CMR, 7 November 2019.
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The indictment alleged three counts of sexual intercourse with a child under the age of 10 years, namely six years of age, contrary to s 66A(1) of the Crimes Act 1900.
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The offences were alleged to have occurred between 26 June 2019 and 26 October 2019 at Griffith. The complainant is the granddaughter of the accused. It is alleged that on three occasions he placed his finger in her vagina.
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The Crown made the complainant available for cross-examination. Because of her age (eight years) she gave unsworn evidence pursuant to s 13(5) of the Evidence Act 1995. She confirmed that the answers given by her in the JIRT interviews on 5 November 2019 and 13 March 2020 were true.
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The complainant was cross-examined about count 3. Ms Mendes conceded that on the limited evidence available, the defendant committed counts 1 and 2: s 59(1)(c). She contended that a finding of not guilty should be recorded for count 3. The Crown did not contend otherwise.
The evidence
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Count 1: JIRT, November 2019. At question 46 the complainant answered
“Pa is my mum’s dad and every time I go to lay on him we’d watch cartoons and the first time he started doing this thing and, um, he started I was watching cartoons and I didn’t notice but he was on my privates. His hand was on my privates and then when I was watching cartoons I did notice that then he was actually in my private”.
Question 46,
“Do you have another name for your privates?”; the answer at 48 was “Vagina”.
At question 58 the complainant answered,
“And then the first, and then the first day he did it I said `Why are you doing that?’ and he said `Ah I thought you liked it’”.
At question 88 and following she answered,
“He was just like wiggling his fingers around”.
Question 89,
“Right okay, and how long did that - did he do that for?”
Answer,
“Until I said stop and I asked him `Why are you doing that?’, and he said `Ah sorry, I thought you liked it’, and I said `Yeah I did’”.
Question 90,
“Yeah”.
Answer,
“But then it wasn’t really good”.
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In relation to count 2 in the first JIRT the evidence is as follows:
Question 116,
“Can you remember anything else that was happening that day?”
Answer,
“No, but I can remember another day, it was Gus’ party”.
At question 117 the answer was
“And he was doing it. That was the day when I had to go to the toilet and I was like, Oww, that was there where it was stinging and stuck”.
Question 119 she was asked
“So did Gus’ party happen that day?”
Answer
“Yeah”.
Question 120,
“So it was before or after Gus’ party?”
Answer, “Ah before”.
Question 130 she was asked
“Tell me what he did then?”
Answer,
“He just kept touching it and touching it and touching it”.
Answer to 131,
“I was at his house exactly the same. I was at his house exactly the same , it was just about to hit”.
Question,
“So exactly the same?”
Answer,
“Just about to hit lunchtime”.
In relation to count 3 in the first JIRT she was asked this at question 154,
“Do you remember any other times when he - when was the last time?”
Answer,
“Um, the last time he did it I don’t know”.
Question,
“You don’t remember the last one, okay. So you’ve told me about the first time, and the time just before Gus’ party, can you remember any others?”
Answer,
“No”.
Question 160,
“So did it happen more than those two times?”
Answer,
“I don’t know”.
Question
“And you just can’t remember?”
Answer,
“Probably”.
Question 162,
“Did it just happen those two times?”
Answer,
“I think it just happened those two times”.
Question 168,
“So is it - are you saying it just happened the two times or could be even more?”
Answer,
“It’s more”.
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In answer to question 182, she said “That it definitely hasn’t happened just the once”.
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At question 200 she was asked
“What about the day that YiaYia was coming home and he said `Quickly pull up your pants’”.
Answer,
“That day?”
Question,
“Was that one of the days that we talked about already? Like was it the first time or before Gus’ party?”
Answer,
“Yeah it was just like - it was like um.”
Question,
“Or was it a different time?”
Answer,
“I think it was a different time”.
Question,
“Okay”.
Answer,
“Yeah it was a different time”.
At question 205 she was asked
“So you remember him saying `Quickly pull up your pants’?”
Answer,
“Yeah”.
Question,
“Just tell me what else you remember.”
Answer,
“That’s the only thing I remember, I have a really good memory but not that good”.
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In the second JIRT conducted on 12 March 2020, at question 26, she was asked,
“I just want you to remember the time that Pa asked you to quickly pull up your pants”.
Answer,
“I just said YiaYia is coming, and then he said `YiaYia’s coming, pull up your pants. No wait a second. No. He looked out the window and that’s when he stopped”.
Question,
“What did he stop doing?”
Answer,
“He stopped touching my vagina”.
Question,
“And how was he touching your vagina?”
Answer,
“He just putting his hand on it and rubbing it around”.
Question,
“Thank you. And do you remember when YiaYia came back what he did after that?”
Answer,
“I was just lying on Pa and I was - I was lying on Pa, I was just watching TV”.
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The cross-examination was directed to count 3. She was asked about YiaYia arriving. She said she was not quite sure about that one. She was asked about the time Pa said, “Your pants - pull your pants up”. She said she was not sure what happened. She was asked if it would have been the same time as Gus’ party, she said “Not quite the same, I’d think not”.
Submissions
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Ms Mendes relied upon question 162 and answer in the first JIRT where the complainant said, “I think it happened those two times”. This answer was in contradistinction to her answer to question 168 where she said it was more than two times. She submitted that there was no clear evidence of another occasion other than the counts 1 and 2.
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She submitted that questions 27 to 30 in the second JIRT was the same incident as count 2. That inference is open.
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Mr Bailey, on behalf of the Crown, submitted that there was sufficient evidence for proof of counts 1 and 2 but insufficient proof for count 3.
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In relation to counts 1 and 2, I found SR to be an honest, accurate and reliable witness. What happened, happened as she described it. She complained to her father, and subsequently her mother, about the conduct of her grandfather. She was brave in coming forward.
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Of someone of such tender years (she was six at the time) she showed great maturity. She is to be commended.
Determination
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After giving due consideration to the two JIRTS, and the submissions of the parties, I am satisfied on the limited evidence available that the defendant committed counts 1 and 2.
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I reject beyond reasonable doubt the version given by the accused to the police in his interview; it could not reasonably be true.
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In relation to count 3 a judge is entitled to accept and reject parts of a witness’ evidence.
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The complainant said that she thought it happened two times which is consistent with my ultimate finding. To then assert within the same interview that it was more than two times raises the question of reliability.
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I accept Ms Mendes’ submission that it is open to infer that what was said in the second JIRT relates to count 2.
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If I form the view that the accused probably committed count 3, I am bound to acquit him due to the high standard of proof. That is, proof beyond reasonable doubt required in a criminal trial. If I have strong suspicions that the accused committed count 3, which I do, that is not enough for proof beyond a reasonable doubt, and I must find the accused not guilty.
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I am not satisfied that count 3 has been proved to the requisite standard. I find the accused not guilty.
Orders
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Counts 1 and 2, on the limited evidence available, the accused committed the offences. On count 3, I find the accused not guilty.
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Decision last updated: 29 September 2022
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