R v RA (No 1)

[2019] NSWDC 375

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v RA (No 1) [2019] NSWDC 375
Hearing dates:	26 March 2019
Date of orders:	26 March 2019
Decision date:	26 March 2019
Jurisdiction:	Criminal
Before:	Wilson SC DCJ
Decision:	Leave granted for the Crown to cross-examine the complainant
Catchwords:	CRIMINAL LAW – EVIDENCE – section 38 application – leave granted to Crown to cross-examine complainant
Legislation Cited:	Evidence Act 1995
Cases Cited:	R v Le [2001] NSWSC 174
Texts Cited:	Odgers, 'Uniform Evidence Law', (Thomson Reuters, 14th ed, 2019)
Category:	Procedural and other rulings
Parties:	Regina (Crown) RA (Accused)
Representation:	Counsel: Ms K Tennant (Crown) Mr S Healy (Accused)   Solicitors: ODPP (Crown) Newton’s Law (Accused)
File Number(s):	2016/270427
Publication restriction:	Non-Publication Order with regards to the name of the Accused or the complainant

Introduction

1. Shortly after the commencement of the cross-examination of the complainant, an application was made by the Crown to question the complainant as though the Crown was cross-examining the complainant, on the basis that it related to evidence given by the witness which was unfavourable to the Crown case (s38(1)(a) of the Evidence Act).

2. The trial related to two incidents giving rise to four counts on an Amended Indictment, the latter two being referred to as ‘Count 3A and Count 3B’; the latter in the alternative to the former.

3. The first incident is said to have occurred between 1 December 1977 and 29 February 1980 at a town in the Central Coast region in the State of New South Wales.

4. The second incident is said to have occurred between 29 August 1980 and 31 December 1981 at another town in the Central Coast region in the State of New South Wales

5. The complainant was born in early 1972. The Accused was born in late 1963.

6. Time was of the essence in relation to the offending for two reasons. First, the Accused turned 14 years of age in late 1977, prior to which date issues relating to doli incapax would have arisen. Secondly, the complainant turned 10 years of age in early 1982, which is of significance as Counts 3A and 3B related to carnal knowledge and attempted carnal knowledge of a girl under the age of 10 years, stated to be 8 or 9 years. Accordingly, to avoid issues of doli incapax, the offending for the first count must have occurred after 1 December 1977 and to satisfy a necessary element of Counts 3A and 3B, that offending must have occurred prior to early 1982.

7. In a statement dated 27 October 2014, the complainant told Police that:

“12. I remember that I was in Year 1 (one) and I remember that I had Miss Brown [a pseudonym] as my school teacher. I remember that it was my first year at [Redacted] Primary School. I know that it was in the summer months that my uncle [RA] came to stay with us in the above house. I can’t remember exactly whereabout…