R v NP

[2025] NSWDC 160

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v NP [2025] NSWDC 160

Hearing dates:

7 – 8 April 2025 & 10 April 2025

Date of orders:

2 May 2025

Decision date:

02 May 2025

Jurisdiction:

Criminal

Before:

Montgomery DCJ

Decision:

Count 1: a verdict of Not Guilty.

Count 2: a verdict of Not Guilty.

Catchwords:

Criminal Law — Special Hearing — section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — Defendant unfit to be tried — judge alone trial — sexual Offences — section 66DC(a) of the Crimes Act 1900 (NSW) — sexual act towards a child under the age of 10 years — section 66A(1) of the Crimes Act 1900 (NSW) — sexual intercourse with a child under the age of 10 years — section 293A of the Criminal Procedure Act 1985 (NSW) —  where Complainant states a lack of memory about alleged offending — where there are inconsistencies between Complainant evidence and complaint evidence

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Crimes Act 1900 (NSW)

Evidence Act 1995 (NSW)

Criminal Procedure Act 1985 (NSW)

Cases Cited:

Jones v Dunkel (1959) 101 CLR 298

Trustees of Roman Catholic Church for Diocese of Maitland-Newcastle v AA [2025] NSWCA 72

Texts Cited:

N/A

Category:

Principal judgment

Parties:

Rex (Crown)
Defendant (name subject to Prohibition Order)

Representation:

Prosecution: Mr M. Paish (Counsel)
Defence: Mr M. McAuliffe (Counsel)

File Number(s):

2023/00027964

Publication restriction:

Prohibition Order – s 578A of the Crimes Act 1900 (NSW) applies – names anonymised

Judgment

1. A determination has been made pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) that the Defendant is unfit to be tried. It is common ground that he continues not to possess the ability to give meaningful instructions or to participate in this Special Hearing. By prior order, he was excused from attending due to the advanced state of his physical and mental incapacity. The trial proceeds by judge alone.

2. At the opening of the Special Hearing, the Crown did not concede that the manifestation of his mental health issues had occurred at the time of the offending. Nevertheless, no expert medical opinion was placed before the Court on this point.

OVERVIEW

3. The Defendant was born on 17 March 1945. At the time of the alleged offending, he was 77 years of age. He is presently 80 years of age. His second wife, who will be referred to in these reasons as “W”, died in 2009.

4. The Complainant was born on 15 August 2013. At the time of the alleged offending, she was 9 years of age. She is presently approximately 11 ½ years of age.

5. The Defendant is the Complainant’s grandfather. The Complainant’s father, who will be referred to in these reasons as “F”, is the Defendant’s son. F and his brother are the children of the Defendant and his first wife, and…