R v Jones (No 2) - [2021] NSWDC 591

District Court

New South Wales

Medium Neutral Citation: R v Jones (No 2) [2021] NSWDC 591
Hearing dates: 18 October 2021; 19 October 2021; 20 October 2021
Date of orders: 29 October 2021
Decision date: 29 October 2021
Jurisdiction: Criminal
Before: Haesler SC DCJ
Decision:
On the limited evidence available the defendant is Not Guilty of Counts 1 to 12.

Catchwords:
CRIME - Indecent assault person under 16 years of age - multiple counts - two complainants
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing - principles to be applied
MENTAL HEALTH - Special hearing - defendant aged 75 – defendant has significant cognitive impairment - dementia - alleged offences against two daughters - hearing using AVL - tendency – complaint evidence – long delay- significant disadvantage - context evidence - good character - assessment of evidence - application of principle

Legislation Cited:
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Evidence (Audio and Visual Links) Act 1998
Mental Health and Cognitive Impairment Forensic Provisions Act 2020
Mental Health (Forensic Provisions) Act 1990

Cases Cited:
De Belin v R; Sinclair v R [2020] NSWDC 487
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
IMM v The Queen (2016) 257 CLR 300] [2016] HCA 14
R v Jones [2020] NSWDC 655
The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40
TO v R [2017] NSWCCA 12
W v R [2014] NSWCCA 110

Category: Principal judgment
Parties: Mr Jones (the accused - a pseudonym)
Director of Public Prosecutions
Representation:
Counsel:
Mr Z Khan (for the accused)
Mr D Noll, Solicitor Advocate (for Director of Public Prosecutions)
Solicitors:
Boehm & Associates (for the offender)

File Number(s): 2018/00320930
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 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. 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 a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes.

Introduction

Mr Jones is 75 years old. He has dementia and other health problems. He has been charged with a number of indecent assault offences against two of his daughters. The offences are said to have occurred between December 1980 and December 1983. On 24 February 2020 I found him unfit to be tried: ss 11-14 Mental Health (Forensic Provisions) Act

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 Jones (No 2)

Details

AGLC: R v Jones (No 2) [2021] NSWDC 591
Case: [2021] NSWDC 591
Decision Date: 29 October 2021

CaseChat Overview and Summary

The case of R v Jones (No 2) involved a defendant, Mr Jones, who was accused of multiple counts of indecent assault against two of his daughters. The matter was heard in the Supreme Court. The defendant was aged 75 at the time of the trial, and he was alleged to have significant cognitive impairment and dementia. The court had to determine whether the defendant was fit to be tried on the charges against him. This required the court to conduct a special hearing to assess the defendant's fitness to stand trial.

The legal issues before the court were whether the defendant was fit to be tried, and if not, whether the public interest required that he be tried. The court considered the principles of the Mental Health Act and the relevant case law in making its decision. The court also considered the evidence presented, including the evidence from the two complainants, and the delay in bringing the case to trial. The court had to balance the need to protect the rights of the defendant with the need to ensure that justice was served for the victims.

The court found that the defendant was unfit to be tried due to his significant cognitive impairment and dementia. The court found that the delay in bringing the case to trial had caused significant disadvantage to the defendant, and that the long delay had impacted the reliability of the evidence. The court also found that the evidence of the complainants was of a tendency only, and that there was insufficient evidence to prove the charges beyond reasonable doubt. The court found that the application of the principle of good character was not appropriate in this case, given the nature of the offences and the evidence presented.

The court ordered that the defendant was not guilty of counts 1 to 12 due to the limited evidence available. The court did not make any order for the defendant's detention or treatment, as the charges had been dismissed. The court noted that the decision was not a reflection on the credibility of the complainants, and that the case highlighted the difficulties of bringing charges against individuals with significant cognitive impairments.

Orders

Orders of the court

On the limited evidence available the defendant is Not Guilty of Counts 1 to 12.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Jones (No 2) [2021] NSWDC 591
Hearing dates:	18 October 2021; 19 October 2021; 20 October 2021
Date of orders:	29 October 2021
Decision date:	29 October 2021
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	On the limited evidence available the defendant is Not Guilty of Counts 1 to 12.
Catchwords:	CRIME - Indecent assault person under 16 years of age - multiple counts - two complainants MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing - principles to be applied MENTAL HEALTH - Special hearing - defendant aged 75 – defendant has significant cognitive impairment - dementia - alleged offences against two daughters - hearing using AVL - tendency – complaint evidence – long delay- significant disadvantage - context evidence - good character - assessment of evidence - application of principle
Legislation Cited:	Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Evidence (Audio and Visual Links) Act 1998 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	De Belin v R; Sinclair v R [2020] NSWDC 487 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 IMM v The Queen (2016) 257 CLR 300] [2016] HCA 14 R v Jones [2020] NSWDC 655 The Queen v Bauer (2018) 266 CLR 56; [2018] HCA 40 TO v R [2017] NSWCCA 12 W v R [2014] NSWCCA 110
Category:	Principal judgment
Parties:	Mr Jones (the accused - a pseudonym) Director of Public Prosecutions
Representation:	Counsel: Mr Z Khan (for the accused) Mr D Noll, Solicitor Advocate (for Director of Public Prosecutions) Solicitors: Boehm & Associates (for the offender)
File Number(s):	2018/00320930
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 a complainant. Identifying information has been removed from this version of the judgment to comply with the statutes. Pseudonyms have been used.