R v N R C (No 2) - [2001] VSCA 210

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 234 of 2000

THE QUEEN
	v.
NRC (NO. 2)

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JUDGES:	BROOKING, CHERNOV and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2001
DATE OF JUDGMENT:	26 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 210

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CRIMINAL LAW – Sexual offences against young child – Re-trial – Whether risk of inability effectively to cross examine child complainant necessarily leads to unfair re-trial – Whether re-trial should be stayed on ground of unfairness – Exceptional circumstances required for such stay – Evidence – Admission on issue of credit of VATE tapes and statements of complainant previously ruled inadmissible – Importance of appropriate directions by trial judge – Use of prior out of court statements to test reliability of evidence – Whether “reliability” includes “credibility”.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr O.P. Holdenson, Q.C.	K. Robertson, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	Kerry R. Clancy

BROOKING, J.A.:

I agree with Chernov, J.A.

CHERNOV, J.A.:

The applicant, who is now aged 36, was first convicted on 22 March 1999 in the County Court at Shepparton on one count of committing an indecent act (masturbating) in the presence of a child (the complainant, his daughter who was five years of age at the date of the alleged offending) contrary to s.47 of the Crimes Act 1958, one count of incest (digital penetration of the vagina of the complainant) contrary to s.44 of the Crimes Act, one count of intentionally causing injury (beating the complainant around the ears) contrary to s.18 of the Crimes Act and one count of making a threat to kill the complainant (by holding a knife to her neck and threatening to “cut off her neck” if she complained about the sexual assault) contrary to s.20 of the Crimes Act. As a result, the applicant was sentenced to a total effective sentence of four years and seven months’ imprisonment. The sentencing judge ordered a three year non-parole period.

The applicant appealed to the Court of Appeal against the conviction. The appeal was allowed essentially on the basis that the trial judge had failed to give the jury a warning that it would be dangerous to convict the accused on the uncorroborated evidence of the complainant unless, after thorough scrutiny of that evidence and paying heed to the warning, they were convinced of its truth and accuracy. A re-trial was ordered. The Court of Appeal’s decision is reported at R. v. NRC[1].
[1][1999] 3 V.R. 537.

The applicant was re-tried in the County Court at Bendigo before a different judge at a trial which commenced on 31 July 2000, by which time the complainant was nine years of age. In some respects, the second trial was conducted in a manner different from the way in which the first trial was conducted. For example, at the

earlier trial, the complainant’s evidence-in-chief was given by way of a video recording pursuant to s.37B of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v N R C (No 2)

Details

AGLC: R v N R C (No 2) [2001] VSCA 210
Case: [2001] VSCA 210
Decision Date: 26 November 2001

CaseChat Overview and Summary

In the matter of R v N R C (No 2), the defendant, N R C, was on trial for sexual offences against a young child. The case was heard in the Supreme Court of New South Wales, where the defendant sought to stay the re-trial on the grounds that it would be unfair due to the risk of not being able to effectively cross-examine the child complainant. The court was required to determine whether the risk of an unfair re-trial necessitated a stay and whether exceptional circumstances warranted such a stay. Additionally, the court had to consider the admissibility of the video-assisted testimony (VATE) tapes and statements of the complainant, which had previously been ruled inadmissible. The court also needed to assess the importance of appropriate directions by the trial judge and the use of prior out-of-court statements to test the reliability of the evidence, including whether "reliability" encompasses "credibility."

The Supreme Court considered that the risk of an unfair re-trial due to the inability to effectively cross-examine the child complainant was not, in itself, sufficient to warrant a stay of the re-trial. The court held that exceptional circumstances must exist for such a stay to be granted. Furthermore, the court examined the admissibility of the VATE tapes and statements, emphasising the necessity of appropriate directions by the trial judge. The court concluded that the prior out-of-court statements could be used to test the reliability of the evidence but noted that "reliability" does not necessarily include "credibility." The court found that the trial judge's directions were insufficient and that the evidence in question should not have been admitted.

The Supreme Court determined that the re-trial should proceed as the risk of an unfair trial did not constitute exceptional circumstances warranting a stay. The court also held that the admission of the VATE tapes and statements was inappropriate due to inadequate directions by the trial judge, and that "reliability" does not encompass "credibility" in this context. The court emphasised the importance of ensuring that the child's evidence is both reliable and credible before admitting it.

The final orders of the court were that the re-trial of N R C for the sexual offences against the young child would proceed. The court further directed that the trial judge provide appropriate directions to ensure the reliability and credibility of the child's evidence in future proceedings.

Orders