R v Hume (a pseudonym) (no. 2) [2022] NSWDC 434

District Court New South Wales

Medium Neutral Citation: R v Hume (a pseudonym) (no. 2) [2022] NSWDC 434 Hearing dates: 16 May 2022 Date of orders: 18 May 2022 Decision date: 18 May 2022 Jurisdiction: Criminal Before: Grant DCJ Decision: Guilty of counts 1 and 2, not guilty of count 3 Catchwords: CRIMINAL LAW – accused unfit to stand trial – special hearing – sexual intercourse with child under 10 Legislation Cited: Crimes Act 1900 Evidence Act 1995. Mental Health and Cognitive Impairment Forensic Provisions Act 2020 Category: Principal judgment Parties: Regina (Crown) Hume (Accused) Representation: Counsel: Mr T Bailey (Crown) Ms C Mendes (Accused)

Solicitors: Solicitor for the Director of Public Prosecutions NSW (Crown) Legal Aid Commission (Accused) File Number(s): 2019/00350425 Publication restriction: Non-publication order in relation to the name of the accused and the complainants.

JUDGMENT

Introduction 1. On 15 April 2021, pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act), I found Mr Hume unfit to stand trial and that he would not become fit for trial within 12 months: R v Hume (a pseudonym) [2021] NSWDC 123. 2. Having found the accused unfit to be tried and satisfied that he will not during the next twelve months become fit, he is to be dealt with under Division 3 of the Act. 3. Pursuant to s 53(2), the Court has received advice from the DPP that further proceedings will be taken in respect of the offences. As a result of that advice, a special hearing was conducted on Monday 16 May 2022. The Crown filed a three-count indictment and called for trial the accused. 4. The hearing was conducted as nearly as possible as if it were a trial of criminal proceedings: s 56(1). 5. The accused was represented by Ms Mendes, public defender, an Australian legal practitioner: s 56(2). 6. The accused was taken to have entered a plea of not guilty to the offences charged without formal arraignment: s 56(5). 7. The accused is a resident in an aged care facility. There were difficulties in having him appear by audio-visual link from that facility. Ms Mendes, without objection from the Crown, sought to have him not appear at the special hearing. I acceded to this request; it was appropriate in the circumstances: s 56(8). 8. Without objection, the Crown tendered 14 documents, namely: 1. Indictment 2. transcript of SR, 5 November 2019 3. transcript of SR, 13 March 2020 4. statement of EH, 21 November 2019 5. statement of JR, 4 November 2019. 6. Statement of Senior Constable Jed Anderson, 7 November 2019 7. surveillance device warrant and transcript, 7 November 2019. 8. ERISP transcript, 7 November 2019. 9. Custody management record, 7 November 2019. 10. statement of officer-in-charge, Kendrew, 19 November 2019. 11. photograph 10 round/TV area, 12 November 2019. 12. photograph 11 accused's recliner chair, 12 November 2019. 13. Fitness determination (R v Hume, pseudonym) [2021] NSWDC 123, 15 April 2021. 14. Pt 9/CMR, 7 November 2019. 1. The indictment alleged three counts of sexual intercourse with a child under the age of 10 years, namely six years of age, contrary to s 66A(1) of the Crimes Act 1900. 2. The offences were alleged to have occurred between 26 June 2019 and 26 October 2019 at Griffith. The complainant is the granddaughter of the accused. It is alleged that on three occasions he placed his finger in her vagina. 3. The Crown made the complainant available for cross-examination. Because of her age (eight years) she gave unsworn evidence pursuant to s 13(5) of the Evidence Act 1995. She confirmed that the answers given by her in the JIRT interviews on 5 November 2019 and 13 March 2020 were true. 4. The complainant was cross-examined about count 3. Ms Mendes conceded that on the limited evidence available, the defendant committed counts 1 and 2: s 59(1)(c). She contended that a finding of not guilty should be recorded for count 3. The Crown did not contend otherwise.