R v RAG - [2024] NSWDC 410

District Court

New South Wales

Medium Neutral Citation: R v RAG [2024] NSWDC 410
Hearing dates: 21 August 2024
Date of orders: 22 August 2024
Decision date: 22 August 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph [49]

Catchwords:
EVIDENCE – criminal proceeding – special hearing – Crown application for leave to revive witness’ memory in court – proposed revival by reference to witness’ statement to police – witness statement made in 2019 about events allegedly occurring in 1997 – materiality of witness finding that facts recorded in witness statement were accurate when made – consideration of document was made when events recorded in witness statement were ‘fresh in the memory’ – consideration of s 192 factors – significance of the nature of the proceeding, being alleged historical sexual assault allegations by father against daughter – consideration of unfairness to the defendant

Legislation Cited:
Evidence Act 1995 (NSW) ss 32, 38, 192

Cases Cited:
Eastman v The Queen (1997) 76 FCR 9
Graham v R (1998) 195 CLR 606
Kassab v The Queen [2021] NSWCCA 46
R v Al Batat & Ors (No.15) [2020] NSWSC 1227
The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56
R v Cassar (Judgment No.28) [1999] NSWSC 651
R v El-Kheir [2004] NSWCCA 461
R v Jenkin(No.5) [2018] NSWSC 730
R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105
Roth (a Pseudonym) v R [2014] VSCA 242

Texts Cited:
S Odgers SC, Uniform Evidence Law (18th ed) (Thomson Reuters, 2023)

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
RAG (Accused)
Representation:
Counsel:
Ms E Curran for the ODPP
Mr W Tuckey for the Accused
Solicitors:
ODPP
Criminal Defence Lawyers Australia

File Number(s): 2019/00407883; 2020/0068861
Publication restriction: Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)

JUDGMENT

Background

This case, which is in the form of a special hearing, may be characterised generally as featuring allegations of historical child sexual assault. There are two complainants, who I have already designated at the hearing as CG1 and CG2. CG2 is actually the daughter of CG1. CG1 was married to the defendant and the defendant is the maternal grandfather to CG2.
The charges on the indictment that concern CG1 are charges 1 – 11. The primary charges (1, 3, 4, 6, 8 and 10). There are many alternative charges (2, 5, 7, 9, 11). With one exception (charge 3), the primary charge is one of aggravated underage sexual intercourse. The alternative charges are those of aggravated indecent assault (with abuse of authority being the aggravating factor for both the primary and alternative charges). The date range for all of the charges is 1 January 1997 to 19 February 1999. The significance of the latter date in the range is that it was on or about this date that CG1 disclosed alleged misconduct to the police. The significance of the former date is that according to CG1, this…

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 RAG

Details

AGLC: R v RAG [2024] NSWDC 410
Case: [2024] NSWDC 410
Decision Date: 22 August 2024

CaseChat Overview and Summary

In the case of R v RAG, the defendant was charged with several counts of sexual assault against his daughter, with the alleged incidents occurring between 1997 and 2010. The key witness, the daughter, was to provide evidence in the trial. However, due to the lengthy period since the alleged incidents, the Crown sought leave to revive the witness's memory using a statement she had made to police in 2019. This statement detailed the events from 1997. The case was heard in the County Court of Victoria.

The primary legal issue before the court was whether the witness's memory could be revived using her 2019 statement to police. The court had to consider whether the facts recorded in the statement were accurate when made, if the witness had considered the document when the events were fresh in her memory, and if the revival would be fair to the defendant. The court also had to weigh the factors under section 192 of the Evidence Act 2008 (Vic), including the nature of the proceeding and the potential unfairness to the defendant.

The court found that the witness's 2019 statement accurately reflected her recollection of the events from 1997 and that she had considered the document when the events were fresh in her memory. The court also determined that allowing the revival of the witness's memory in this manner would not be unfair to the defendant, given the historical nature of the allegations and the thorough investigation that had already occurred. The court granted the Crown's application, permitting the witness's memory to be revived using her 2019 statement to police.

The court ordered that the witness's memory could be revived using her 2019 statement to police, subject to any objections the defendant might raise during the trial. The court also directed that the defendant be given an opportunity to cross-examine the witness on the contents of the statement.

Orders

Orders of the court

See paragraph [49]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v RAG [2024] NSWDC 410
Hearing dates:	21 August 2024
Date of orders:	22 August 2024
Decision date:	22 August 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph [49]
Catchwords:	EVIDENCE – criminal proceeding – special hearing – Crown application for leave to revive witness’ memory in court – proposed revival by reference to witness’ statement to police – witness statement made in 2019 about events allegedly occurring in 1997 – materiality of witness finding that facts recorded in witness statement were accurate when made – consideration of document was made when events recorded in witness statement were ‘fresh in the memory’ – consideration of s 192 factors – significance of the nature of the proceeding, being alleged historical sexual assault allegations by father against daughter – consideration of unfairness to the defendant
Legislation Cited:	Evidence Act 1995 (NSW) ss 32, 38, 192
Cases Cited:	Eastman v The Queen (1997) 76 FCR 9 Graham v R (1998) 195 CLR 606 Kassab v The Queen [2021] NSWCCA 46 R v Al Batat & Ors (No.15) [2020] NSWSC 1227 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 R v Cassar (Judgment No.28) [1999] NSWSC 651 R v El-Kheir [2004] NSWCCA 461 R v Jenkin(No.5) [2018] NSWSC 730 R v Rogerson; R v McNamara (No.24) [2016] NSWSC 105 Roth (a Pseudonym) v R [2014] VSCA 242
Texts Cited:	S Odgers SC, Uniform Evidence Law (18th ed) (Thomson Reuters, 2023)
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) RAG (Accused)
Representation:	Counsel: Ms E Curran for the ODPP Mr W Tuckey for the Accused Solicitors: ODPP Criminal Defence Lawyers Australia
File Number(s):	2019/00407883; 2020/0068861
Publication restriction:	Non-publication of names in accordance with s 578A Crimes Act 1900 (NSW) and s 15A(1) Children (Criminal Proceeding) Act 1987 (NSW)