R v WS

Case [2025] NSWDC 219 18 June 2025

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v WS [2025] NSWDC 219
Hearing dates: March: 10,11,12,13,14,17,18,19,20,21,24,25,26,27,28and 31.
April: 1,2,3,4,7,8,9,10,15,16,17,24,28,29 and 30.
May: 1,2,5,6,12,13,14,15,16,19,20,21,22,26,29 and 30.
June: 2,3,4,5,6,10 and 11.
Date of orders: 18 June 2025
Decision date: 18 June 2025
Jurisdiction: Criminal
Before: Grant DCJ
Decision:
1. Verdicts of not guilty are entered in relation to Counts 1 to 33.
2. In relation to Counts 34 and 35, I am satisfied on the limited evidence available that the accused committed the offences charged.

Catchwords:
CRIME – Special hearing – previous trial – retrial ordered by Court of Criminal Appeal – subsequent finding of unfitness – Director elected special hearing – historical allegations said to have occurred between 1973 and 1991 – tendency evidence – allegations that the accused in part used hypnosis (or relaxation therapy involving massage) on complainants – expert evidence on memory and hypnosis – accused gave evidence in original trial – three further complainants subsequent to grant of re-trial

Legislation Cited:
Crimes Act 1900 (NSW)
Criminal Procedure Act 1986 (NSW)
Evidence Act 1995 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Cases Cited:
AR v R [2025] NSWCCA 22
Banditt v The Queen [2005] HCA 80
Fleming v The Queen (1998) 197 CLR 250
Fox v Percy (2003) 214 CLR 118
IMM v The Queen [2016] HCA 14
Jovanovic v R (1997) 42 NSWLR 520
Liberato v The Queen (1985) 159 CLR 507
Mahmood v Western Australia (2008) 232 CLR 397
R v Bauer [2018] HCA 40
R v WS [2021] NSWCCA 124
R v Markuleski (2001) 52 NSWLR 82
Wardell v R [2025] NSWCCA 26
Zoneff v The Queen (2000) 200 CLR 234

Category: Principal judgment
Parties: Rex (Crown)
WS (Accused)
Representation:
Counsel:
Mr W Martin (Crown)
Mr T Pickering (Accused)
Solicitors:
Mr S Rose and Ms S Tam (Crown)
Ms E Hurcum (Accused)

File Number(s): 2014/00280784
Publication restriction:
Pursuant to s 578A of the Crimes Act 1900 (NSW), 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.
The complainants Phillip and Joseph Wright have expressed their wish not to be subject to the non-publication order.

JUDGMENT

Procedural history
Special hearing

ELEMENTS

Indecent assault, contrary to s81 of the Crimes Act 1900 (NSW)
Counts 1,2,3,4,5,6,7 and 8 (Complainant: CC), Counts 9,10,11,12,13, 14 and 16 (in the alternative to Count 15) (Complainant: Phillip Wright), Counts 17,18, 19,20,21,22,23 24, 26 (in the alternative to Count 25) and 27 (Complainant: Joseph Wright), Count 28 (Complainant: ST) and Counts 29 and 30 (Complainant: SF)

Sexual intercourse without consent, contrary to s61D(1) of the Crimes Act 1900 (NSW)
Count 15 (Complainant: Phillip Wright), Count 25 (Complainant: Joseph Wright)

Indecent assault and act of indecency, contrary to s61E of the Crimes Act 1900 (NSW)
Counts 31,32 and 33 (Complainant: IM), Counts 34…

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 WS

Details

AGLC: R v WS [2025] NSWDC 219
Case: [2025] NSWDC 219
Decision Date: 18 June 2025

CaseChat Overview and Summary

The case of R v WS concerned allegations of criminal acts against the accused, WS, who had previously been acquitted of these charges. Following a successful appeal by the Director of Public Prosecutions, a retrial was ordered by the Court of Criminal Appeal. However, subsequent to this decision, WS was found unfit to stand trial. The Director then elected for a special hearing concerning the historical allegations, which were said to have occurred between 1973 and 1991. The case involved the admissibility of tendency evidence and the use of hypnosis or relaxation therapy involving massage on complainants. Expert evidence was presented on memory and hypnosis, and WS had given evidence in the original trial. After the hearing, three additional complainants came forward.

The primary legal issue before the court was whether the historical allegations could be proven beyond reasonable doubt, particularly considering the limited evidence available and the accused's previous acquittal. The court had to determine the admissibility and weight of the tendency evidence, as well as the credibility of the expert evidence on memory and hypnosis. It was also necessary to assess the reliability of the new complainants' testimonies.

The court found that, for Counts 1 to 33, the prosecution had not successfully proven the allegations beyond reasonable doubt. However, for Counts 34 and 35, the court was satisfied that WS had committed the offences charged, despite the limited evidence. The court acknowledged the difficulty in establishing the facts due to the passage of time and the challenges in gathering evidence. The court also considered the accused's previous acquittal and the expert evidence presented. Ultimately, the court concluded that the prosecution had met the necessary standard of proof for these specific counts.

The court ordered that verdicts of not guilty be entered in relation to Counts 1 to 33. For Counts 34 and 35, the court found WS guilty of the offences charged, given the limited evidence available. The decision highlighted the complexities and challenges in prosecuting historical allegations, particularly when expert evidence and the credibility of complainants are in question.

Orders

Orders of the court

1. Verdicts of not guilty are entered in relation to Counts 1 to 33.

2. In relation to Counts 34 and 35, I am satisfied on the limited evidence available that the accused committed the offences charged.

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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Citations

R v WS [2025] NSWDC 219

Cases Citing This Decision

No citing cases yet.

Cases Cited

Wardell v The King [2025] NSWCCA 26
Citation 1 (Para 97)

…. The tendency sought to be adduced (contained in the new tendency notice) has been simplified in accordance with the recent decisions of Wardell v R [2025] NSWCCA 26 and AR v R [2025] NSWCCA 22.…
R v WS [2021] NSWCCA 124
Citation 2 (Para 8)

…accused during a recorded conversation in 2014 where Phillip Wright confronted him about allegations of sexual abuse. A new trial was ordered: R v WS [2021] NSWCCA 124.…
R v Bauer [2018] HCA 40
Citation 3

…anovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The Queen (2000) 200 CLR 234 Category: Principal judgment Parties: Rex (Cr…
IMM v The Queen [2016] HCA 14
Citation 4

…WCCA 22 Banditt v The Queen [2005] HCA 80 Fleming v The Queen (1998) 197 CLR 250 Fox v Percy (2003) 214 CLR 118 IMM v The Queen [2016] HCA 14 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R…
R v Jovanovic [2014] ACTSC 98
Citation 5

…[2005] HCA 80 Fleming v The Queen (1998) 197 CLR 250 Fox v Percy (2003) 214 CLR 118 IMM v The Queen [2016] HCA 14 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 W…
Mahmood v Western Australia [2008] HCA 1
Citation 6

…v The Queen [2016] HCA 14 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The Queen (2000) 200 CLR 234 Category: Principal j…
Banditt v The Queen [2005] HCA 80
Citation 7 (Para 31)

…ses of s 61D (2) is to be interpreted subjectively requiring proof of subjective foresight of the possibility of non-consent: Banditt v The Queen [2005] HCA 80.…
Fox v Percy [2003] HCA 22
Citation 8 (Para 54)

…ossible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.…
R v Markuleski [2001] NSWCCA 290
Citation 9

…985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The Queen (2000) 200 CLR 234 Category: Principal judgment Parties: Rex (Crown) WS (Accused) Representation: Counsel: Mr W Martin (Cro…
Zoneff v The Queen [2000] HCA 28
Citation 10

…Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The Queen (2000) 200 CLR 234 Category: Principal judgment Parties: Rex (Crown) WS (Accused) Representation: Counsel: Mr W Martin (Crown) Mr T Pickering (Accused) Solicitors: Mr S Rose and Ms S Tam (Cr…
Fleming v The Queen [1998] HCA 68
Citation 11 (Para 40)

…In accordance with s 133 of the Criminal Procedure Act 1986 (NSW), and as required by the decision of the High Court in Fleming v The Queen (1998) 197 CLR 250, I remind myself of the following principles of law:…
Liberato v The Queen [1985] HCA 66
Citation 12

…197 CLR 250 Fox v Percy (2003) 214 CLR 118 IMM v The Queen [2016] HCA 14 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The…

Legislation Cited

Crimes Act 1900 (ACT)
1 mention (from Para 1)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 40)
Evidence Act 1995 (Cth)
1 mention (from Para 110)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
1 mention (from Para 10)

Medium Neutral Citation:	R v WS [2025] NSWDC 219
Hearing dates:	March: 10,11,12,13,14,17,18,19,20,21,24,25,26,27,28and 31. April: 1,2,3,4,7,8,9,10,15,16,17,24,28,29 and 30. May: 1,2,5,6,12,13,14,15,16,19,20,21,22,26,29 and 30. June: 2,3,4,5,6,10 and 11.
Date of orders:	18 June 2025
Decision date:	18 June 2025
Jurisdiction:	Criminal
Before:	Grant DCJ
Decision:	1. Verdicts of not guilty are entered in relation to Counts 1 to 33. 2. In relation to Counts 34 and 35, I am satisfied on the limited evidence available that the accused committed the offences charged.
Catchwords:	CRIME – Special hearing – previous trial – retrial ordered by Court of Criminal Appeal – subsequent finding of unfitness – Director elected special hearing – historical allegations said to have occurred between 1973 and 1991 – tendency evidence – allegations that the accused in part used hypnosis (or relaxation therapy involving massage) on complainants – expert evidence on memory and hypnosis – accused gave evidence in original trial – three further complainants subsequent to grant of re-trial
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Cases Cited:	AR v R [2025] NSWCCA 22 Banditt v The Queen [2005] HCA 80 Fleming v The Queen (1998) 197 CLR 250 Fox v Percy (2003) 214 CLR 118 IMM v The Queen [2016] HCA 14 Jovanovic v R (1997) 42 NSWLR 520 Liberato v The Queen (1985) 159 CLR 507 Mahmood v Western Australia (2008) 232 CLR 397 R v Bauer [2018] HCA 40 R v WS [2021] NSWCCA 124 R v Markuleski (2001) 52 NSWLR 82 Wardell v R [2025] NSWCCA 26 Zoneff v The Queen (2000) 200 CLR 234
Category:	Principal judgment
Parties:	Rex (Crown) WS (Accused)
Representation:	Counsel: Mr W Martin (Crown) Mr T Pickering (Accused) Solicitors: Mr S Rose and Ms S Tam (Crown) Ms E Hurcum (Accused)
File Number(s):	2014/00280784
Publication restriction:	Pursuant to s 578A of the Crimes Act 1900 (NSW), 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. The complainants Phillip and Joseph Wright have expressed their wish not to be subject to the non-publication order.