Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. A determination has been made pursuant to s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") that the Defendant is unfit to be tried. It is common ground that he continues not to possess the ability to give meaningful instructions or to participate in this Special Hearing. By prior order, he was excused from attending due to the advanced state of his physical and mental incapacity. The trial proceeds by judge alone.

At the opening of the Special Hearing, the Crown did not concede that the manifestation of his mental health issues had occurred at the time of the offending. Nevertheless, no expert medical opinion was placed before the Court on this point.

OVERVIEW

3. The Defendant was born on 17 March 1945. At the time of the alleged offending, he was 77 years of age. He is presently 80 years of age. His second wife, who will be referred to in these reasons as "W", died in 2009.

4. The Complainant was born on 15 August 2013. At the time of the alleged offending, she was 9 years of age. She is presently approximately 11 and half years of age.

5. The Defendant is the Complainant's grandfather. The Complainant's father, who will be referred to in these reasons as "F", is the Defendant's son. F and his brother are the children of the Defendant and his first wife, and were stepchildren of W.

6. At the time of the alleged offending, the Complainant lived with F, her mother and her brother, who will be referred to in these reasons as "X", as well as a cousin and a grandparent, a short drive from the Defendant's residence.

7. The Defendant lived with his sister-in-law, who will be referred to in these reasons as "S". S had resided with the Defendant from 2009. The house was a three-bedroom, freestanding, single-story residence with front and rear yards. At the front of the house, overlooking the front yard through a large window, was the lounge room, the front door and the Defendant's bedroom. At the rear of the house was a sunroom overlooking the rear yard through large windows and a back door leading to an undercover space and a garage.

8. F regularly visited the Defendant's property, not uncommonly more than once per week, to perform maintenance duties, including yard work. After completing the work, he would regularly sit with and speak to the Defendant whilst having a drink in the rear yard of the property. On these occasions, he would also check on the Defendant's welfare. Every 2 to 3 weeks, F would mow the front and rear lawns.

9. F would invite his children, the Complainant and X, to accompany him to the Defendant's house on those occasions. The limited accommodation of his utility motor vehicle meant that only one of them could usually go. The Complainant chose to go to the Defendant's house with F more often than did X. When F performed the yard work, including mowing the lawns, the Complainant would generally spend time inside the house with the Defendant. It was customary for the Defendant to give the Complainant, or X, an ice cream and/or a soft drink when they attended his residence.

10. The offending is alleged to have occurred on two separate occasions, several weeks apart, in a period concluding on 29 November 2022. It is said that, on each occasion, when the Complainant and the Defendant were within the house, F was outside mowing.

COUNTS

11. Count 1: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did intentionally carry out a sexual act towards the Complainant, being a child then under the age of 10 years, namely 8 or 9; an offence against s 66DC(a) Crimes Act 1900 (NSW).

12. Count 2: on a date between 1 January 2022 and 29 November 2022, at Whalan, NSW (address redacted in these reasons) did have sexual intercourse with the Complainant, being a child then under the age of 10 years, namely 8 or 9 years; an offence against s 66A(1) Crimes Act 1900 (NSW).

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968f56ea58cefe01b082628)

Disclaimer: Curated by HT Syndication.