R v JH (a pseudonym) [2023] NSWDC 391

District Court New South Wales

Medium Neutral Citation: R v JH (a pseudonym) [2023] NSWDC 391 Hearing dates: 29 August 2023 Decision date: 29 September 2023 Jurisdiction: Criminal Before: Newlinds SC DCJ Decision: See paragraph 91(1) and (2), page 20 Catchwords: CRIME – Special hearing – aggravated sexual assault – aggravated indecent assault Legislation Cited: Crimes Act 1900 (NSW) ss 66A(1), 61M(2) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ss 44, 47(1)(b), 47(3), 53(2) Category: Principal judgment Parties: Rex (Crown) JH (Defendant) Representation: Counsel: A Robertson (Crown) J Tyler-Stott (Defendant)

Solicitors: Office of the Director of Public Prosecutions (Crown) Karim Criminal Defence Lawyers (Defendant) File Number(s): 2021/283176 Publication restriction: Pursuant to s 578A Crimes Act 1900 and s 15A Children (Criminal Proceedings) Act 1987, publication of the names of, or any matter which could identify the Complainants is prohibited. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 on the grounds set out in ss 8(1)(a) and 8(1)(c) of the Act, the name of the Defendant is suppressed.

JUDGMENT

Introduction 1. HIS HONOUR: The defendant, who is now aged 87, is charged with 5 sexual offences relating to his granddaughter EH between 1 June 2018 and 10 December 2019 when she was aged 7-8 years old. There are 4 counts of aggravated indecent assault under s 61M(2) of the Crimes Act 1900 and one count of sexual intercourse with a person under the age of 10 under s 66A(1) of the Crimes Act. 2. All offences are alleged to have occurred at the defendant's home where he lived with his wife, his son, and for much of the time EH and her brother ZH. They had moved in following the defendant's son's marriage breakdown and lived there much of the time due to a shared custody arrangement. They lived upstairs while the defendant lived downstairs. The defendant's wife had mobility issues and therefore she was confined to the downstairs area. 3. The offending is alleged to have occurred in EH's upstairs bedroom when the defendant's son and ZH were absent from the home. 4. The Crown case is that the offending involved the defendant sucking the Complainant's nipples, placing his penis on her genitals, engaging in penile-vaginal penetration, and ejaculating soon afterwards in a bathroom in EH's presence. The defendant is alleged to have told EH not to tell anyone, "otherwise I'll go to jail". 5. On 10 May 2021, EH partially complained to her mother. On 2 July 2021 and again on 18 August 2021, the police interviewed EH. On 5 October 2021 the police arrested, interviewed and charged the defendant.