Hagerty v The King

[2025] NSWDC 67

District Court

New South Wales

Medium Neutral Citation:

Hagerty v R [2025] NSWDC 67

Hearing dates:

21 February 2025

Date of orders:

26 February 2025

Decision date:

26 February 2025

Jurisdiction:

Criminal

Before:

J Smith SC DCJ

Decision:

(1) The appellant has leave to appeal.

(2) The appeal is allowed.

(3) The conviction is set aside.

Catchwords:

CRIME – appeals – appeal against conviction – child sex offence – leave to appeal – moderate intellectual disability – failure to comply with the provisions of s 13(5) of the Evidence Act 1995 ­– reliability of child complainant’s evidence

Legislation Cited:

Crimes (Appeal and Review) Act2001 ss 13, 16(2)

Crimes Act 1900 ss 66DA(a), 61HB

Evidence Act 1995 s 13(5)(a)-(c)

Cases Cited:

Kirk v Industrial Relations Commission of NSW [2010] HCA 1;

MK v R [2014] NSWCCA 274;

R v Brooks [1998] 44 NSWLR 121

SH v R [2012] NSWCCA 79;

Category:

Principal judgment

Parties:

David Hagerty (Appellant)
Public Prosecutions (NSW) (Crown)

Representation:

Solicitors:
I Vizintin (Appellant)
A Bird (Crown)

File Number(s):

2023/00027625

Judgment

1. The appellant was charged with one count of intentionally sexually touching his nephew who was between the ages of 3 and 5. The matter was heard in the Local Court at Wollongong on 18 April 2024, and on 30 May 2024 her Honour delivered judgment, finding the appellant guilty.

2. On 10 July 2024 the court sentenced the appellant.

3. On 10 September 2024 the appellant lodged an application for leave to appeal against the conviction. Given that the notice was lodged more than 28 days after the orders of the Local Court, leave is required: section 13 of the Crimes (Appeal and Review) Act2001. The parties agreed that the application was made within 3 months of the relevant order.

4. Before I can grant leave, the Court must be satisfied that to do so would be in the interests of justice: see section 16(2) of the Crimes (Appeal and Review) Act. Amongst other things, that requires the Court to consider the reasons for the delay in bringing the appeal and the prospects of success.

5. One matter relevant to the delay is that the appellant suffers from moderate intellectual disability, with a specific learning disorder and generalised anxiety. His ability to process information is evident from the fact that during the course of the hearing before the Local Court, he was accompanied by four support people who were made available to him under the National Disability Insurance Scheme.

6. Two grounds were raised in the appeal. First, that the learned magistrate failed to comply with the provisions of section 13(5) of the Evidence Act 1995, and for that reason the hearing was affected by an error of law and the decision must be quashed. Secondly, that her Honour erred in accepting the reliability of the complainant’s evidence in any event.

7. On the face of the transcript, the learned Magistrate did not comply with section 13(5)(c) and so, subject to the arguments of the Crown, the…