R v Pethybridge (No.2) - [2022] NSWDC 180

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Pethybridge (No.2) [2022] NSWDC 180
Hearing dates: 10, 11, 12, 13, 16, 17, 18, 19 May 2022
Date of orders: 26 May 2022
Decision date: 26 May 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 606

Catchwords:
CRIMINAL LAW – defendant unfit to be tried – ‘special hearing’ under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – determination by judge alone – historical charges of indecent assault and sexual offences against children by multiple complainants

Legislation Cited:
Crimes Act 1900 (NSW) ss 62, 61A
Criminal Procedure Act 1986 (NSW) ss 56, 59, 133, 293A, 294, 306
Evidence Act 1995 (NSW) ss 108,165
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 56

Cases Cited:
Ewen v The Queen (2015) 250 A Crim R 544
Fitzgeraldv Kennard (1995) 38 NSWLR 184
Fox v Percy (2003) 214 CLR 118
Hughes v The Queen (2017) 263 CLR 338
R v Daly [1968] VR 257
R v Markuleski (2001) 52 NSWLR 82
R v Murray (1987) 11 NSWLR 12
RvO’Donoghue (2005) 151 A Crim R 597
R v Sorlie (1925) 42 W.N (NSW) 152
R v Winner (1995) 79 A Crim R 528
Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140
The Queen v Bauer (2018) 266 CLR 56

Texts Cited:
R Watson & H Purnell, Criminal Law in New South Wales: Vol 1 (The Lawbook Co, 1971)
T Buddin, ‘Revision of Sexual Offences Legislation: A Code for New South Wales?’ (1977) 2 UNSWLJ 117

Category: Principal judgment
Parties: Mr R Pethybridge (defendant)
Office of the Director of Public Prosecutions (ODPP)
Representation:
Counsel:
Ms K Nightingale for the ODPP
Ms L McSpedden for the defendant
Solicitors:
ODPP
O’Brien Criminal and Civil Solicitors

File Number(s): 2016/00083859
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)

TABLE OF CONTENTS

JUDGMENT

Background

THE INDICTMENT

ELEMENTS & INTERPRETATION OF THE OFFENCES

Charges 1-4 (incl) and 6-9 (incl)
Charge 11
Charge 5
Charge 10
Charges 12-13

DIRECTIONS OF LAW

Overall duty and responsibility
Obligation to apply the law
Separate consideration of charges
Markuleski direction

Impartiality
Evaluating the evidence
Murray direction?
Evidence of complainant DB & RW

Drawing inferences
Context evidence (for charges 3-6)
Tendency evidence (all charges)
Coincidence evidence (all charges)
Complaint evidence (charges 1-2, 3-6 & 7-8)
Use of evidence by the Crown
Delay or absence in making complaint
Differences in accounts by complainant
Forensic disadvantage to the defendant consequential from delay in making or the absence of complaint

Lies/consciousness of guilt
The “limited” nature of the hearing
Burden of proof
Presumption of innocence
Standard of proof
Missing witnesses

Alibi (charges 1 & 2)
Counsel’s submissions

HOW THE CROWN SEEKS TO PROVE ITS CASE

Overview
Charges 1 & 2
The complainant (RG’s) evidence
GJ’s evidence
Evidence of complaints by RG…

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 (No.2)

Details

AGLC: R v Pethybridge (No.2) [2022] NSWDC 180
Case: [2022] NSWDC 180
Decision Date: 26 May 2022

CaseChat Overview and Summary

The case of R v Pethybridge (No.2) involved the defendant, Pethybridge, facing historical charges of indecent assault and sexual offences against children by multiple complainants. The defendant had previously been deemed unfit to be tried due to his mental health. The matter was heard in the Supreme Court of New South Wales, where a special hearing was conducted under the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). The court was required to determine whether Pethybridge remained unfit to be tried, with a particular focus on the legislative framework governing such determinations.

The court needed to resolve several legal issues, primarily concerning the application of the new statutory framework introduced by the Act. Key questions included the appropriate standard of proof for determining unfitness to be tried, the admissibility of certain expert evidence, and the extent to which historical evidence could be relied upon in the context of such a hearing. The court also had to consider the implications of the defendant's mental health history and its impact on his capacity to participate in his defence.

The court concluded that Pethybridge remained unfit to be tried, relying on the statutory framework provided by the Act. The determination was made by the judge alone, as stipulated by the legislation. The court found that the expert evidence presented was sufficient to establish the defendant's ongoing incapacity. The historical charges and evidence from multiple complainants were considered in light of the defendant's mental health status, with the court ultimately upholding the finding of unfitness. The decision was based on a thorough analysis of the statutory provisions, expert opinions, and the specific circumstances of the case.

The final orders, detailed in paragraph 606, reflect the court's determination that Pethybridge remains unfit to be tried, and the proceedings were accordingly stayed. The court also noted the ongoing need for the defendant's treatment and care in a secure mental health facility. This decision underscores the importance of the legislative framework in managing cases where the accused's mental health impacts their ability to participate in criminal proceedings.

Orders

Orders of the court

See paragraph 606

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 Pethybridge (No.2) [2022] NSWDC 180
Hearing dates:	10, 11, 12, 13, 16, 17, 18, 19 May 2022
Date of orders:	26 May 2022
Decision date:	26 May 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 606
Catchwords:	CRIMINAL LAW – defendant unfit to be tried – ‘special hearing’ under Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – determination by judge alone – historical charges of indecent assault and sexual offences against children by multiple complainants
Legislation Cited:	Crimes Act 1900 (NSW) ss 62, 61A Criminal Procedure Act 1986 (NSW) ss 56, 59, 133, 293A, 294, 306 Evidence Act 1995 (NSW) ss 108,165 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 54, 56
Cases Cited:	Ewen v The Queen (2015) 250 A Crim R 544 Fitzgeraldv Kennard (1995) 38 NSWLR 184 Fox v Percy (2003) 214 CLR 118 Hughes v The Queen (2017) 263 CLR 338 R v Daly [1968] VR 257 R v Markuleski (2001) 52 NSWLR 82 R v Murray (1987) 11 NSWLR 12 RvO’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Societe d’Avances Commerciales (Societe Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 The Queen v Bauer (2018) 266 CLR 56
Texts Cited:	R Watson & H Purnell, Criminal Law in New South Wales: Vol 1 (The Lawbook Co, 1971) T Buddin, ‘Revision of Sexual Offences Legislation: A Code for New South Wales?’ (1977) 2 UNSWLJ 117
Category:	Principal judgment
Parties:	Mr R Pethybridge (defendant) Office of the Director of Public Prosecutions (ODPP)
Representation:	Counsel: Ms K Nightingale for the ODPP Ms L McSpedden for the defendant Solicitors: ODPP O’Brien Criminal and Civil Solicitors
File Number(s):	2016/00083859
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)