R v Pethybridge - [2022] NSWDC 171

District Court

New South Wales

Medium Neutral Citation: R v Pethybridge [2022] NSWDC 171
Hearing dates: 10 May 2022
Date of orders: 10 May 2022
Decision date: 11 May 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 33

Catchwords:
CRIMINAL LAW – evidence – admissibility – practice and procedure – person unfit to be tried – special hearing after convictions of prescribed sexual offences quashed and retrial ordered – admissibility of record of original evidence of complainants in special hearing – whether special hearing is a ‘new trial’ or ‘new trial proceeding’ – Criminal Procedure Act 1986 (NSW) s 306B

Legislation Cited:
Criminal Procedure Act 1986 ss 306B, 306I
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW) ss 33, 34
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 56
Mental Health (Forensic Provisions) Act 1990 (NSW) s 21

Cases Cited:
EK v The Queen (2010) 79 NSWLR 740
Pethybridge v R [2020] NSWCCA 247

Texts Cited:
Nil

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr R Pethybridge (accused)
Representation:
Counsel:
Ms K Nightingale for the ODPP
Ms L McSpedden for the accused
Solicitors:
ODDP
O'Brien Criminal & Civil Solicitors

File Number(s): 2016/0083859
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

Judgment

Background

The defendant is charged with multiple counts on an indictment of indecent assault and other sexual offences against multiple complainants from the late 1950s through to the late 1980s.
The defendant was tried before a jury of twelve and on 20 June 2018 was found guilty of what (were then) 12 counts (the ‘first trial’), however, his appeal against convictions was allowed and the Court of Criminal Appeal directed he be re-tried upon the same indictment.
He was tried again on 18 August 2018 and a jury found him guilty (the ‘second trial’). On 2 October 2020 the Court of Criminal Appeal allowed his appeal^[1], quashed the conviction and remitted to this Court the subject matter of the first trial.
1. Pethybridge v R [2020] NSWCCA 247 (a restricted decision).
However, on 21 May 2021, Acting Judge Woods QC found that the defendant was ‘unfit’ to stand trial and determined that the proceeding be listed for ‘special hearing’ in accordance with the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the “MHCIFP Act”).
The special hearing commenced before me yesterday. The Crown foreshadowed that in the hearing, it wishes to invoke the provisions of Division 3 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 (NSW) (the ‘CP Act’). Specifically, it wishes to tender as evidence in its case a record of the original evidence of the complainants or special witnesses^[2] under s 306B of the CP Act.
2. Counsel for the defendant observes that because the Crown relies upon the evidence of…

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 Pethybridge

Details

AGLC: R v Pethybridge [2022] NSWDC 171
Case: [2022] NSWDC 171
Decision Date: 11 May 2022

CaseChat Overview and Summary

The case of R v Pethybridge involved the respondent, Pethybridge, who was originally convicted of various sexual offences against children. After his convictions were quashed and a retrial ordered, a special hearing was held to determine whether Pethybridge was fit to be tried. The special hearing examined the admissibility of the original evidence of the complainants, which was recorded during the earlier proceedings. The central issue was whether the special hearing constituted a 'new trial' or a 'new trial proceeding' under the Criminal Procedure Act 1986 (NSW) s 306B, and thus whether the original evidence could be admitted.

The court had to decide if the special hearing was a 'new trial' or a 'new trial proceeding', as this would determine the admissibility of the prior recorded evidence. The court examined the statutory language and considered the purpose and nature of the special hearing. The court concluded that the special hearing was not a 'new trial' but rather a proceeding to determine fitness to be tried, which did not constitute a 'new trial proceeding' under the Act. Therefore, the court held that the original evidence of the complainants could be admitted.

As a result of this reasoning, the court admitted the recorded evidence from the original trial into the special hearing. This decision facilitated the determination of Pethybridge's fitness to be tried. The final orders reflected the court's determination, allowing the special hearing to proceed with the admission of the original evidence, thereby ensuring the proper conduct of the fitness assessment process.

Orders

Orders of the court

See paragraph 33

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

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Medium Neutral Citation:	R v Pethybridge [2022] NSWDC 171
Hearing dates:	10 May 2022
Date of orders:	10 May 2022
Decision date:	11 May 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 33
Catchwords:	CRIMINAL LAW – evidence – admissibility – practice and procedure – person unfit to be tried – special hearing after convictions of prescribed sexual offences quashed and retrial ordered – admissibility of record of original evidence of complainants in special hearing – whether special hearing is a ‘new trial’ or ‘new trial proceeding’ – Criminal Procedure Act 1986 (NSW) s 306B
Legislation Cited:	Criminal Procedure Act 1986 ss 306B, 306I Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) ss 33, 34 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 56 Mental Health (Forensic Provisions) Act 1990 (NSW) s 21
Cases Cited:	EK v The Queen (2010) 79 NSWLR 740 Pethybridge v R [2020] NSWCCA 247
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr R Pethybridge (accused)
Representation:	Counsel: Ms K Nightingale for the ODPP Ms L McSpedden for the accused Solicitors: ODDP O'Brien Criminal & Civil Solicitors
File Number(s):	2016/0083859
Publication restriction:	Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)