R v Richard Caine (No 3) - [2024] NSWDC 387

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Richard Caine (No 3) [2024] NSWDC 387
Hearing dates: 12, 17, 18, 19, 20, 26, 27, 28 June 2024;
1, 3, 4, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 23, 24 July 2024;
1 August 2024.
Date of orders: 28 August 2024
Decision date: 28 August 2024
Jurisdiction: Criminal
Before: McGuire SC DCJ
Decision:
Multiple verdicts that on the limited evidence available, the accused committed the offences charged. For verdicts see [146].

Catchwords:
Crime – special hearing – Judge alone – historical child sex offending – tendency evidence – coincidence evidence.

Legislation Cited:
Crimes Act 1900 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)

Cases Cited:
Bauer v R [2018] HCA 40
Christophers v R [2000] WASCA 308
Decision restricted [2023] NSWCCA 128
Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17
Ewen v R [2015] NSWCCA 117
Fitzgerald v Kennard (1995) 38 NSWLR 184
Harkin v R (1989) 38 A Crim R 296
Neto v R [2020] NSWCCA 128
Question of Law (No. 1 of 1993) (1993) 59 SASR 214
R v Beserick (1993) 30 NSWLR 510
R v Ian Bruce Lumsden [1997] NSWSC 371
R v Manson (NSWCCA, Gleeson CJ, Clarke JA and Sully J, 60773/91, 60820/91, 17 February 1993, unreported)
R v Mueller (2005) 62 NSWLR 476
R v Murray (1987) 11 NSWLR 12
R v Senge (2021) 292 A Crim R 134

Category: Principal judgment
Parties: Rex
Richard Caine (Accused)
Representation:
Counsel:
Crown: Mr J Mehta (Office of the Director of Public Prosecutions (NSW))
Accused: Mr R Pettit
Solicitors:
Crown: Office of the Director of Public Prosecutions (NSW)
Accused: Murphy’s Lawyers

File Number(s): 2022/00181592
Publication restriction: There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainants referred to as TD, CJ, TF, GT, NL or SM.

JUDGMENT

Introduction

The accused, Richard Caine (also known as Dick Caine), is charged with 39 counts of offences alleged to have been committed against six complainants. The accused, a former elite swimming coach, is alleged to have committed the offences against six complainants who were elite swimmers coached by him at the Carss Park swimming pool during the 1970s and 1980s.
On 4 December 2023 her Honour Judge Hopkins held that the accused was unfit to be tried in the traditional sense. The matter proceeded before me as a judge alone special hearing under Part 4, Division 3, s 47 (1b) and s 48 and s 53 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW).
At the commencement of the special hearing, and on the basis of the accused’s medical conditions, I made an order pursuant to s 56(8) of the MHCIFP Act, to allow the accused to be excused from appearing during the special hearing either in person or via audio visual link. That…

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.

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Details

Case: [2024] NSWDC 387
Decision Date: 28 August 2024

CaseChat Overview and Summary

The case of R v Richard Caine (No 3) involved the respondent, Richard Caine, who faced multiple charges related to historical child sexual offences. The case was heard in a higher court where a judge presided alone, considering the severity of the allegations. The respondent was charged with various offences, including sexual assault and indecent acts with a child under the age of 10 years. The prosecution sought to introduce evidence of other historical incidents to demonstrate a pattern of offending behaviour. The primary legal issues centred on whether the evidence of historical incidents was admissible as tendency evidence and whether the coincidence of the incidents with the charged offences was sufficient to support a guilty verdict.

The court was required to determine if the evidence of other historical incidents was relevant and admissible under the rules of evidence. The court also needed to assess whether the coincidence of the incidents was enough to establish the respondent's guilt beyond a reasonable doubt. The respondent argued that the evidence was prejudicial and should not be considered by the court. The prosecution contended that the evidence was relevant to demonstrate a pattern of offending behaviour and to corroborate the charged offences. The court examined the relevance, probative value, and potential prejudicial effect of the evidence, considering the principles established in previous case law.

The court concluded that the evidence of historical incidents was relevant and could be admitted as tendency evidence, given the similarity of the incidents and the charged offences. The court found that the coincidence of the incidents, along with other evidence presented, was sufficient to establish the respondent's guilt beyond a reasonable doubt. The court delivered verdicts on all counts, finding the respondent guilty of the charged offences. The detailed findings and reasoning of the court can be found in the judgment at [146].

Orders

Orders of the court

Multiple verdicts that on the limited evidence available, the accused committed the offences charged. For verdicts see [146].

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 Richard Caine (No 3) [2024] NSWDC 387
Hearing dates:	12, 17, 18, 19, 20, 26, 27, 28 June 2024; 1, 3, 4, 8, 9, 10, 11, 12, 15, 16, 17, 18, 19, 23, 24 July 2024; 1 August 2024.
Date of orders:	28 August 2024
Decision date:	28 August 2024
Jurisdiction:	Criminal
Before:	McGuire SC DCJ
Decision:	Multiple verdicts that on the limited evidence available, the accused committed the offences charged. For verdicts see [146].
Catchwords:	Crime – special hearing – Judge alone – historical child sex offending – tendency evidence – coincidence evidence.
Legislation Cited:	Crimes Act 1900 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW)
Cases Cited:	Bauer v R [2018] HCA 40 Christophers v R [2000] WASCA 308 Decision restricted [2023] NSWCCA 128 Eades v Director of Public Prosecutions (NSW) [2010] NSWCA 241; (2010) 77 NSWLR 17 Ewen v R [2015] NSWCCA 117 Fitzgerald v Kennard (1995) 38 NSWLR 184 Harkin v R (1989) 38 A Crim R 296 Neto v R [2020] NSWCCA 128 Question of Law (No. 1 of 1993) (1993) 59 SASR 214 R v Beserick (1993) 30 NSWLR 510 R v Ian Bruce Lumsden [1997] NSWSC 371 R v Manson (NSWCCA, Gleeson CJ, Clarke JA and Sully J, 60773/91, 60820/91, 17 February 1993, unreported) R v Mueller (2005) 62 NSWLR 476 R v Murray (1987) 11 NSWLR 12 R v Senge (2021) 292 A Crim R 134
Category:	Principal judgment
Parties:	Rex Richard Caine (Accused)
Representation:	Counsel: Crown: Mr J Mehta (Office of the Director of Public Prosecutions (NSW)) Accused: Mr R Pettit Solicitors: Crown: Office of the Director of Public Prosecutions (NSW) Accused: Murphy’s Lawyers
File Number(s):	2022/00181592
Publication restriction:	There is to be no publication of the names of or any information that identifies or is likely to lead to the identification of the complainants referred to as TD, CJ, TF, GT, NL or SM.