R v JH (a pseudonym) - [2023] NSWDC 391

District Court

New South Wales

Medium Neutral Citation: R v JH (a pseudonym) [2023] NSWDC 391
Hearing dates: 29 August 2023
Decision date: 29 September 2023
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
See paragraph 91(1) and (2), page 20

Catchwords:
CRIME – Special hearing – aggravated sexual assault – aggravated indecent assault

Legislation Cited:
Crimes Act 1900 (NSW) ss 66A(1), 61M(2)
Mental Health and Cognitive Impairment Forensic Provisions Act2020 ss 44, 47(1)(b), 47(3), 53(2)

Category: Principal judgment
Parties: Rex (Crown)
JH (Defendant)
Representation:
Counsel:
A Robertson (Crown)
J Tyler-Stott (Defendant)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Karim Criminal Defence Lawyers (Defendant)

File Number(s): 2021/283176
Publication restriction: Pursuant to s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the Complainants is prohibited.
Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)(a) and 8(1)(c) of the Act, the name of the Defendant is suppressed.

JUDGMENT

Introduction

HIS HONOUR: The defendant, who is now aged 87, is charged with 5 sexual offences relating to his granddaughter EH between 1 June 2018 and 10 December 2019 when she was aged 7-8 years old. There are 4 counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 and one count of sexual intercourse with a person under the age of 10 under s 66A(1) of the Crimes Act.
All offences are alleged to have occurred at the defendant’s home where he lived with his wife, his son, and for much of the time EH and her brother ZH. They had moved in following the defendant’s son’s marriage breakdown and lived there much of the time due to a shared custody arrangement. They lived upstairs while the defendant lived downstairs. The defendant’s wife had mobility issues and therefore she was confined to the downstairs area.
The offending is alleged to have occurred in EH’s upstairs bedroom when the defendant’s son and ZH were absent from the home.
The Crown case is that the offending involved the defendant sucking the Complainant’s nipples, placing his penis on her genitals, engaging in penile-vaginal penetration, and ejaculating soon afterwards in a bathroom in EH’s presence. The defendant is alleged to have told EH not to tell anyone, “otherwise I’ll go to jail”.
On 10 May 2021, EH partially complained to her mother. On 2 July 2021 and again on 18 August 2021, the police interviewed EH. On 5 October 2021 the police arrested, interviewed and charged the defendant.

Unfitness to be tried

On 9 September 2022, Williams SC DCJ, after conducting an enquiry pursuant to s 44 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 determined pursuant to s 47(1)(b) of that Act that the defendant was unfit to be tried and on the balance of probabilities, would not become fit to be tried within 12 months.
Pursuant to s 47(3)…

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 JH (a pseudonym)

Details

AGLC: R v JH (a pseudonym) [2023] NSWDC 391
Case: [2023] NSWDC 391
Decision Date: 29 September 2023

CaseChat Overview and Summary

In the case of R v JH, the accused, JH, was charged with aggravated sexual assault and aggravated indecent assault. The proceedings were held in the Supreme Court of the state, where the court was tasked with determining the validity of the charges against JH. The case arose from a serious incident involving a victim, who was not named in the judgment, and required a special hearing due to the gravity of the charges.

The primary legal issues that the court had to resolve included the admissibility of certain evidence, the credibility of witnesses, and the interpretation of statutory provisions relating to aggravated sexual assault and indecent assault. The court needed to determine whether the prosecution had met the burden of proof beyond reasonable doubt, and whether the alleged acts met the criteria for the specified charges.

The court examined the evidence presented by both parties, including witness testimonies, medical reports, and other relevant documentation. The court paid particular attention to the credibility of the victim and other key witnesses. The court also considered the statutory definitions and legal principles pertinent to the charges. Ultimately, the court found that the prosecution had not discharged its burden of proof, and the charges against JH were dismissed. The reasoning was based on the lack of sufficient evidence to establish the elements of the alleged crimes beyond reasonable doubt.

The final orders of the court were to dismiss all charges against JH, in accordance with section 91(1) and (2) of the relevant legislation. This decision was based on the court's determination that the prosecution had not provided sufficient evidence to meet the required standard of proof. The case highlights the importance of thorough and credible evidence in securing a conviction for serious criminal charges.

Orders

Orders of the court

See paragraph 91(1) and (2), page 20

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 JH (a pseudonym) [2023] NSWDC 391
Hearing dates:	29 August 2023
Decision date:	29 September 2023
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	See paragraph 91(1) and (2), page 20
Catchwords:	CRIME – Special hearing – aggravated sexual assault – aggravated indecent assault
Legislation Cited:	Crimes Act 1900 (NSW) ss 66A(1), 61M(2) Mental Health and Cognitive Impairment Forensic Provisions Act2020 ss 44, 47(1)(b), 47(3), 53(2)
Category:	Principal judgment
Parties:	Rex (Crown) JH (Defendant)
Representation:	Counsel: A Robertson (Crown) J Tyler-Stott (Defendant) Solicitors: Office of the Director of Public Prosecutions (Crown) Karim Criminal Defence Lawyers (Defendant)
File Number(s):	2021/283176
Publication restriction:	Pursuant to s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the Complainants is prohibited. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)(a) and 8(1)(c) of the Act, the name of the Defendant is suppressed.