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 1. 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. 2. 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. 3. 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. 4. 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"). 5. 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. 6. Section 306B(1) of the CP Act facilitates the evidence of complainants or special witnesses being given in this way if "a person is convicted of a prescribed sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecution (may) tender as evidence in the new trial proceeding .." (emphasis supplied). 7. The defendant contends that "new trial proceeding" under s 306B(1) of the CP Act should be construed in a way which excludes 'special hearings' conducted under the provisions of Division 3 of the MHCIFP Act. The Crown contends that this special hearing constitutes a 'new trial proceeding' for the purposes of s 306B(1) of the CP Act. The competing contentions The defendant's contentions 1. The defendant submits that the nature and incidents of special hearings is such that they necessarily cannot be characterised as "new trial proceedings." This is evident from the inception of a special hearing, which is pre-conditioned upon a finding that the defendant is unfit to stand trial and will not become fit to be tried within 12 months. The point of a special hearing is to accommodate the circumstance that a defendant is not fit to stand trial. 2. The defendant submits that whilst the provisions of the Evidence Act 1995 (NSW) apply to 'special hearings', relating to matters of evidence, the provisions of Division 3 of Part 5 of the CP Act, relating to matters of procedure, do not. Section 306B relates only to "trial procedures". So too, the defendant submits, the provisions of Part 3 of the CP Act apply to special hearings. 3. The defendant submits that these contentions are indicated by extrinsic material. Thus, the heading of the title of the legislation which enacted Division 3 of Part 5 of Chapter 6 of the CP Act was in the following terms: "An Act to amend the Criminal Procedure Act 1986 with respect to evidence in criminal trials, including retrials of sexual assault proceedings; and for other purposes." (emphasis supplied) 1. Reference was also made to the Explanatory Note to the bill which relevantly provided: "The object of this Bill is to amend the Criminal Procedure Act 1986 so as to permit the admission of a record of evidence given by the complainant in a sexual assault proceeding in any new trial that is ordered following an appeal." (emphasis supplied) 1. The defendant referred generally, although did not take the Court to any particular part of, the Second Reading Speech by Attorney General Debus in the Legislative Assembly, 3 March 2005. 2. The Crown did, however, refer, with specificity, to that Second Reading Speech. In it the Attorney General said, inter alia: "… The Government is determined to provide support and assistance to victims of sexual assault at every stage of the process. As such, in recognition of the low reporting and conviction rates, the Government is introducing a number of reforms designed to assist complainants in the difficult task of giving evidence, thereby encouraging them to come forward .. ….. The Evidence Act does not provide for the admission of the record of the original evidence of a complainant on a retrial ordered by an appeal court where the complainant is available but unwilling to give further evidence. The Government considers that the record of original evidence should be admitted in such circumstances and that the rule against hearsay should not prevent this. Sexual assault has a devastating effect on its victims …. Not surprisingly, some complainants who have given evidence that resulted in a conviction decide they simply cannot return to give evidence again if a new trial is ordered on appeal. Significant time will have passed and the complainant will have tried as best as possible to put the matter out of their mind." The Crown's contentions 1. The Crown observed that the expression 'new trial proceeding' is not expressly defined in Division 3 of Part 5 of Chapter 6, or Part 5 of Chapter 6 more generally, under the CP Act. In the absence of an express definition, the expression should extend to 'any criminal proceeding' conducted by the Court. (A criminal proceeding is defined in s 121(a) of the CP Act, relevantly, as the trial of a person before the District Court). 2. The Crown submits that the provisions of Division 3 of Part 5 of Chapter 6 of the CP Act, no differently to other Divisions within Part 5 of Chapter 6, should apply to special hearings. 3. One of those other Divisions was Division 4, whose title is "Special Provisions Relating to Subsequent Trials of Sexual Offence proceedings". By s 306I of the CP Act, where the trial of an accused is discontinued following discharge of a jury (because they could not reach a verdict or for any other reason) so that a "new trial" was listed, the prosecution may tender, as the evidence in chief in the "new trial proceedings" a record of the original evidence of the complainant or a special witness. 4. Further other general provisions contained in Chapter 2 and Chapter 3 of the CP Act apply to special hearings. By implication, the Crown contends that there is no particular reason why the provisions of Division 3 of Part 5 of Chapter 6 should be excluded in their operation in special hearings. 5. The Crown submits that its position would promote the purpose or object underlying the provisions in Division 3 of Part 5 of Chapter 6 of the CP Act: the Interpretation Act 1987 (NSW), s 33. The Crown also submits that, as authorised by s 34 of the Interpretation Act, and in accordance with the general law, the Court may consider extrinsic material. 6. The Crown observed that the Explanatory Note indicated that the object of the provisions was to permit admission of the evidence given by a complainant in any new trial that is ordered following appeal. In this case, on 2 October 2020, after quashing the conviction(s), the Court of Criminal Appeal ordered a new trial. The admission of the original evidence of the complainants in the special hearing would be consistent with that object. Further, the Crown relied upon the Second Reading Speech which contained references, which I have alluded to above, to the Government's 'support and assistance' to victims of sexual assault and awareness of the empirical tendency of some complainants who had given evidence to decide that they would not want to give evidence again if a new trial was ordered; and even if they did, there was a concern that with the passage of time, complainants were likely to want to put the circumstances out of their mind. This was the 'mischief' underlying the provisions in Division 3 of Part 5 of Chapter 6 of the CP Act. 7. The Crown submits that acceptance of the defendant's position would lead to the incongruous result of placing sexual assault complainants who have given original evidence in an inferior position at a special hearing then they would be in a special hearing based upon the arbitrary circumstance of the defendant's mental condition. That would be antithetical to the purpose and objects of Division 3 of Part 5 of Chapter 6 of the CP Act. 8. The Crown submitted that a special hearing is properly to be characterised as a trial proceeding, albeit one which is conducted in accordance with certain special procedures to accommodate the defendant's mental or cognitive impairment. Reference was made to the definition of a special hearing in s 54 of the MHCIFP Act, to: "a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the defendant committed the offence …" 1. Section 56(1) of the MHCIFP Act is titled 'Trial procedure'. It provides that: "A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings." (emphasis supplied) 1. It should be inferred that the 'conduct' of a 'trial of criminal proceedings' is a reference to the provisions in Part 2 of Chapter 2, Part 3 of Chapter 3 of the CP Act. These provisions are to be read alongside Chapter 6 of the CP Act (which deals with evidentiary matters) in combination with the Evidence Act 1995 (NSW). 2. Subsections 56(3)-(7) of the MHCIFP Act, which in different ways, all make provision to protect and accommodate a defendant's interests. Subsections 56(3) and (4) provide for a right of legal representation. Section 56(5) deems that a defendant has pleaded not guilty to the offence is charged. Section 56(6) enables a defendant to raise defences "if the special hearing were an ordinary trial of criminal proceedings" (emphasis supplied). Subsections 56(7) & (8) permits rights in the defendant to give evidence and to participate in certain prescribed circumstances. 3. Other modifications to Part 2 of Chapter 2, Part 3 of Chapter 3 of the CP Act, for the purposes of the conduct of special hearings, are made by subsection 56(9)-(10) which, to paraphrase evince a general indication that special hearings are conducted by judge alone, but prescribe certain matters in the event that a jury is constituted. The Crown compares the tribunal of fact for special hearings with the tribunal of fact for trials of criminal proceedings, the latter of which may also be conducted by judge alone, or by judge and jury. The Crown then refers to the results of a special hearing. Like a trial, there is a 'verdict' (s 59) albeit that there are three verdicts which may be rendered by the trier of fact in comparison with the two verdicts rendered by the trier of fact in a trial. 4. Overall, however, the Crown pointed to the commonality as between the procedures for special hearing with trial proceedings. Consideration 1. Neither the defendant nor the Crown referred to the decision of the Court of Criminal Appeal of EK v The Queen (2010) 79 NSWLR 740 ("EK"), in which substantially similar arguments were raised, albeit in relation to the legislative predecessor to the MHCIFP Act; and a different provision of the CP Act. 2. EK concerned s 306I of the CP Act, which, as indicated is contained within Division 4 of Part 5 of Chapter 6 of that legislation. A similar situation occurred in that case as it does here; the difference being that in EK the Crown wanted to adduce, at the special hearing, the original evidence of complainants that had been given in the earlier trial (in which a jury had been discharged), which would have been given a new trial; rather than the situation here of the Crown seeking to adduce, at the special hearing, the original evidence of the complainants that had been given in the earlier trial (after a conviction had been quashed on appeal), which would have been given in the retrial. 3. In EK, the Court of Criminal Appeal (Simpson J as her Honour then was, McClellan CJ at CL agreeing; R A Hulme J agreeing, but with additional reasons) determined that the focus which the parties had placed on the question whether a 'new trial' or 'new trial proceeding' under s 306I incorporated a 'special hearing', thereby enabling the original evidence of the complainants to be admitted in the special hearing, was misconceived. The proper focus was on the legislative predecessor to s 56(1) of the MHCIFP Act [3] , which required that the special hearing was to be conducted "as nearly as possible as if it were a trial of criminal proceedings". As Simpson J explained at [19]-[20], if the special hearing was, instead, a trial of criminal proceedings, the complainant's evidence would be admitted under s 306I(1). The predecessor provision to s 56(1) of the MHCIFP Act therefore made the evidence admissible, in the same way, in a special hearing. It was, in effect, unnecessary to classify the special hearing as a 'new trial' or 'new trial proceeding'. 4. In my view, by parity of reasoning, the Court's holding in EK applies to original evidence of the complainants that the Crown wishes to tender in a special hearing which would have been admitted in a retrial (following the quashing of a conviction on appeal) under s 306B(1). The correspondence in the purpose between ss 306I and 306B was remarked upon by R A Hulme J in his Honour's concurring judgment: at [26]. It is to avoid the need for complainants to give evidence a second time (and be cross-examined) in the circumstances identified in each provision. By s 56(1) of the MHCIFP Act, if the special hearing was a trial, the complainant's evidence would be admitted under s 306B(1). I see no material distinction on the basis that the admission of the evidence would, at any trial, have proceeded under s 306B rather than 306I. Whether or not, as the defendant contends, s 306B is not an 'evidentiary provision relating specifically to a trial procedure', it is substantially, or functionally, no different to s 306I. 5. This conclusion is dispositive. This renders it unnecessary for me to address the applicability of obiter dicta in Simpson J's judgment (at [18]) that the expressions 'new trial' or 'new trial proceeding' in s 306I, when transposed to s 306B, should not be construed to incorporate a 'special hearing'. Her Honour (at [18]) adverted to one reason for that conclusion – that a special hearing could not result in a conviction – whilst alluding to other reasons which her Honour did not elucidate. As noted, McClellan CJ at CL agreed with Simpson J, without qualification. But although agreeing with Simpson J as to the reason her Honour gave as to why the evidence was admissible at the special hearing, R A Hulme J separately would have reached the same result as the admissibility of the original evidence on the additional basis that the expression 'new trial' or 'new trial proceeding' in s 306I would incorporate 'a special hearing': [33]-[43]. In this particular respect, his Honour was in the minority. 6. As a trial judge of an inferior court, in circumstances where I have found that s 56(1) of the MHCIFP Act provides the pathway for the conclusion that I have reached, it is unnecessary and undesirable for me to adjudicate upon the correctness of the conflicting dicta of these judgments in the Court of Criminal Appeal upon the construction of s 306B, even if that course was permitted to me. 7. In the result, the combined operation of s 56(1) of the MHCIFP Act and s 306B(1) of the CP Act is such that the Crown may rely upon the original evidence of the complainants and special witnesses in this special hearing, subject to valid objections or suggested alterations (which, I note, were not raised on the defendant's behalf in argument) under ss 306B(5D) and/or 306B(5E), respectively, of the CP Act. ********** Endnotes 1. Pethybridge v R [2020] NSWCCA 247 (a restricted decision). 2. Counsel for the defendant observes that because the Crown relies upon the evidence of one or more complainants being cross-admissible as to the tendency of the defendant in relation to another or other complainants, the evidence of such complainants makes them 'special witnesses' within the meaning of s 306A(a) of the CP Act. 3. The Mental Health (Forensic Provisions) Act 1990 (NSW), s 21(1). 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