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 appellant has a strong case in the appeal. For that reason alone, I consider that it is in the interests of justice to grant the appellant leave to appeal.

8. The complainant was 6 years old at the time of the hearing. After some discussion of other preliminary matters, her Honour turned to the question of the competence of the complainant to give sworn evidence. At transcript page 11 line 31, the following exchange took place:

HER HONOUR: Obviously with the age of the child, we’re not talking about some affirmations. Do you have someone to talk to the child about telling the truth? Has that all happened?

[Ms Bird appeared for the Crown]

BIRD: Yes, your Honour, I’m happy for you to do that as well.

HER HONOUR: I’ll need to do that again under s 13.

9. This was a reference to section 13 of the Evidence Act and, it seems, particularly to section 13(3) which provides:

A person who is competent to give evidence about a fact is not competent to give sworn evidence about the fact if the person does not have the capacity to understand that, in giving evidence, he or she is under an obligation to give truthful evidence.

10. The Court, however, did not question the complainant as to whether or not he understood that he was under an obligation to give truthful evidence. Rather, it proceeded directly to ask questions relevant to subsection 13(5) of the Evidence Act. That subsection provides:

The person who, because of subsection (3), is not competent to give sworn evidence is competent to give unsworn evidence if the court has told the person-

(a) that it is important to tell the truth, and;

(b) that he or she may be asked questions that he or she does not know or cannot remember the answer to and that he or she should tell the court if this occurs and;

(c) that he or she may be asked questions that suggest certain statements are true or untrue and that he or she should agree with the statements that he or she believes are true and should feel no pressure to agree with statements that he or she believes are untrue.

11. Thus, at transcript page 13 line 9, the following exchange occurred:

HER HONOUR: We’re going to ask a lot of questions today and Lenore is going to help you. If you sometimes need to rest or think you’ve had enough, and you want a break or something like that can you let me know or let Lenore know if you think that you really need a break or drink.

[Lenore was the witness intermediary].

A. Okay.

HER HONOUR: Yes, you can tell me that, that’s great. It’s really important that today that you tell me the truth. You’ve got to tell me when you’re asked some questions got to just tell me what really happened. Can you do that?

A. Yeah.

12. It appears, and it was not contested before me, that although she did not give any reasons for it, her Honour had concluded that the complainant did not have the capacity to understand that in giving evidence he was under an obligation to give truthful evidence, and so, before he could give unsworn evidence, section 13(5) had to be complied with. The passage I have just set out reflects the requirements in subsection 13(5)(a).

13. The complainant was then called without being sworn and examination in chief started. Immediately after he gave his name, her Honour said to him, at transcript 16 line 23:

“Any questions that you are asked today and you don’t understand them you can just say, ‘I don't understand’ all right? That’s fine. But when you do tell me about them you just need to tell me the truth. If you can’t remember, you can also tell me, ‘Well, I can't remember’. That’s absolutely fine, okay?”

14. In this passage her Honour complied with the requirements of section 13(5)(b).

15. However, her Honour said nothing at that or at any other point in the hearing in connection with the requirements of section 13(5)(c) of the Evidence Act.

16. There is no question that all of the requirements of section 13(5) are mandatory and that, even in the absence of complaint at the time, or indeed of any consequential substantial miscarriage of justice, the failure to comply with them means that the person is not competent to give unsworn evidence, their evidence is inadmissible and, if he or she does give evidence then there has been a trial conducted which is not according to law and the judgment must be set aside: see SH v R [2012] NSWCCA 79 (‘SH v R’) and MK v R [2014] NSWCCA 274.

17. That much is not contested.

18. It seems to me, too, that this type of error could readily be described as jurisdictional error and so be susceptible to review in the Supreme Court: see Kirk v Industrial Relations Commission of NSW [2010] HCA 1; 239 CLR 531 at [53]-[55], [76]-[77] and [114]. However, that point was not argued and I will leave it to one side.

19. The Crown argues that compliance with section 13(5) does not require the Court to recite verbatim each paragraph, but rather that the essence of the requirements need only be given. Again, that is uncontroversial. The critical question is whether the essence of the requirement was given in this case.

20. The Crown relies upon the interplay with what was said by her Honour, the witness intermediary report and the visual cue cards that were with the complainant at the time of giving evidence. It also argues that it was important that the recommendations in the witness intermediary report were followed by the parties and discussed with the Court. In addition to this, the Crown particularly relies upon her Honour’s statement to the complainant that I have already read out, namely:

“You’ve had a little chat with Lenore today and we’re going to ask a lot of questions today and Lenore is going to help you”.

21. However, these arguments cannot be accepted. The requirement in section 13(5) is for the Court to tell the person of the particular matters, not anybody else, including any questioner or the witness intermediary. In SH v R, his Honour Basten JA said at [13], that “Such instruction is required to be provided by the Court, not by the person who is likely to be doing the questioning”. That much was consistent with an earlier decision in R v Brooks [1998] 44 NSWLR 121, in which the Court was considering an earlier version of section 13 of the Evidence Act. In that case, his Honour Sperling J discerned that the policy behind the provision was that, “the authority of the Court is to be brought to bear on the witness by means of instruction, nothing less will do”. Grove J said something to similar effect at [126].

22. Once that is understood, references to what was said in a report by another person, or indeed what occurred during the course of the trial, had no impact on the question of whether section 13(5) was complied with.

23. Compliance can only be met by the Court and what it says to the witness. Here, the Court said nothing that reflected the requirements of subsection 13(5)(c). For that reason, the requirements of the provision were not met and the complainant was not competent to give unsworn evidence. As a result, his evidence was not admissible and should have been rejected. Without that evidence, the only available result was an acquittal.

24. The result on appeal must therefore be that the appeal be allowed and the conviction set aside.

25. The second ground should also succeed; however, given that it is strictly unnecessary to deal with it, I will set out my reasons for that conclusion very briefly.

26. The appellant was charged with sexual touching of a child under the age of ten contrary to section 66DA(a) of the Crimes Act 1900. There was no issue about the age of the complainant. The critical issue was whether the Crown established beyond reasonable doubt that there was sexual touching within the meaning of section 61HB of the Crimes Act. That, in turn, boiled down to whether the Crown had established that the appellant had touched the complainant with his penis.

27. The complainant, however, was not consistent in what he said about this. On 15 July 2023 he told his mother that the appellant had put his penis ‘near him’. Later that day, he told a police officer that the appellant, “Stick his pistola” [that is his word for his penis] “on me… for ages… at Nonna Vecchia’s … he tried to stick his penis on my bum”.

28. Those differences are not, as the learned Magistrate found, mere matters of detail. One version supported the offence charged, the other did not.

29. There were also aspects of the complainant’s evidence that were inconsistent with other evidence or were later withdrawn as false. The complainant said that he told his grandmother about the incident whereas she denied that quite forcefully in her evidence. He also said at one point that the complainant (as said) also touched his sister, but he then withdrew that allegation.

30. These inconsistencies are sufficient in my mind to raise a reasonable doubt about the reliability of the complainant, particularly as to whether the appellant actually touched him with his penis. For that additional reason, if the complainant’s evidence was admissible, I find that her Honour erred in finding the appellant guilty.

31. I make the following orders:

1. The appellant has leave to appeal.

2. The appeal is allowed.

3. The conviction is set aside.

**********

Decision last updated: 18 March 2025