R v Foster [2021] NSWDC 725

District Court New South Wales

Medium Neutral Citation: R v Foster [2021] NSWDC 725 Hearing dates: 16/8/21-23/8/21, 27/8/21 Date of orders: 27/8/21 Decision date: 27 August 2021 Jurisdiction: Criminal Before: Bourke SC DCJ Decision: I find counts 1, 2, 3, 4, 5 and 8 proved beyond reasonable doubt and I convict the accused of those matters Catchwords: Crime – Judge alone trial – Verdict – Sexual touching of person with cognitive impairment - Sexual act towards person with cognitive impairment – Sexual intercourse with person with cognitive impairment Legislation Cited: Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995 Cases Cited: Elomar & Ors v R [2014] NSWCCA 303 Jiang v R [2010] NSWCCA 277 R v Markuleski [2001] NSWCCA 290 Category: Principal judgment Parties: NSW DPP – Crown Paul Douglas Foster - Accused Representation: Counsel: Mr R Munro for Crown Mr S Ryan for Accused File Number(s): 2019/260738 Publication restriction: Non-publication order in relation to the identity of the complainant

Judgment on verdict 1. The accused, Mr Paul Foster, is charged with eight offences, five being offences of sexual touching of a person with a cognitive impairment under s 61KD of the Crimes Act 1900, one alleged offence of committing a sexual act towards a person with a cognitive impairment, that being under s 61KF of the Crimes Act, and two charges of sexual intercourse with a person with a cognitive impairment, those being under s 66F of the Crimes Act 1900. On 12 August 2021 I made an order by consent for the accused's trial to be conducted by judge alone and on that day he was arraigned and his trial commenced. 2. The allegations involve one complainant, Ms P, who, at the relevant time, was a patient at Kaoriki House where she had been admitted from 12 March 2018 until 2 April 2019. Kaoriki House is a 12 bed psychiatric inpatient ward within Morisset Hospital, and the accused was a senior nurse there at the time. 3. In this judgment I record my verdicts and reasons for reaching those verdicts. In reaching my verdicts I must take into account any warning, direction or comment which, by law, would be required to be given or made to a jury.