R v RAG

Case [2006] NSWCCA 343 26 October 2006

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CITATION: R v RAG [2006] NSWCCA 343
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 June 2006

JUDGMENT DATE:
26 October 2006

JUDGMENT OF: McClellan CJ at CL at 1; Johnson J at 2; Latham J at 3

DECISION: 1. Appeal allowed; 2. Decision of Maguire DCJ of 17 February 2006 is set aside.

CATCHWORDS: CROWN APPEAL - s 5F(2) Criminal Appeal Act 1912 - whether decision that complainant not competent to give unsworn evidence an interlocutory judgment or order - criteria under s 13(2) Evidence Act 1995 - limits of inquiry under s 13 - age-appropriate language for child complainant

LEGISLATION CITED: Criminal Appeal Act 1912
Evidence Act 1995
Evidence (Children) Act 1997

CASES CITED: Brown, Barwick, Brown v R [2006] NSWCCA 69
R v Ambrosoli (2002) NSWLR 603; [2002] NSWCCA 386
R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
R v Brooks (1998) 44 NSWLR 121; (1998) 102 A Crim R 367
R v Caine & Anor (1993) 68 A Crim R 233
R v Haddad & Treglia [2000] NSWCCA 352
R v Lavender [2002] NSWCCA 511
R v Lisoff [1999] NSWCCA 364
R v Loc Huu Phan [2003] NSWCCA 205
R v Milakovic [2004] NSWCCA 199
R v O’Neill (2001) 122 A Crim R 510
R v Pavia (1993) 67 A Crim R 364
R v Steffan (1993) 30 NSWLR 633
R v Stevenson [2000] WASCA 301

PARTIES: Director of Public Prosecutions (Appl)
RAG (Resp)

FILE NUMBER(S): CCA 2006/442

COUNSEL: D Arnott SC (Appl/Crown)
J Stratton SC (Resp)

SOLICITORS: Director of Public Prosecutions (Appl/Crown)
Legal Aid Commission of NSW (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/21/3092

LOWER COURT JUDICIAL OFFICER: Maguire DCJ

2006/442

McCLELLAN CJ at CL
JOHNSON J
LATHAM J
26 OCTOBER 2006

R v RAG

Judgment

1 McCLELLAN CJ at CL : I agree with Latham J.

2 JOHNSON J : I agree with Latham J.

3 LATHAM J : The Director of Public Prosecutions appeals against a decision of Maguire QC DCJ’s (the trial judge) at Campbelltown District Court on 17 February 2006, pursuant to s 5F(2) of the Criminal Appeal Act 1912, on the ground that the trial judge erred in finding that the complainant, a girl aged seven years and ten months, was not competent to give unsworn evidence, according to the criteria required by s 13(2) of the Evidence Act 1995, concerning alleged sexual assaults upon her by the respondent.

4 Senior Counsel for the respondent submits that an appeal does not lie against the decision, either under s 5F(2) or s 5F(3A). The jurisdictional issue assumed some prominence in the respondent’s argument, no doubt because it was recognised (and faintly acknowledged during the hearing of the appeal) that the merits of the trial judge’s decision were difficult to defend in the light of the somewhat unusual background to the proceedings that were before the trial judge…

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 [2006] NSWCCA 343
Case: [2006] NSWCCA 343
Decision Date: 26 October 2006

CaseChat Overview and Summary

The case involved an appeal by the Crown against a decision that a complainant, a child, was not competent to give unsworn evidence. The trial judge had determined that the child was unable to understand the nature and consequences of an oath and, therefore, could not give sworn evidence. The appeal was heard in the Supreme Court of Queensland. The key issue for the court was whether the decision regarding the competency of the complainant to give unsworn evidence constituted an interlocutory judgment or order under section 5F(2) of the Criminal Appeal Act 1912. The court also had to determine the criteria for assessing the competency of a child witness under section 13(2) of the Evidence Act 1995, particularly in relation to age-appropriate language and understanding the consequences of an oath.

The court found that the decision on the competency of the child to give unsworn evidence did not constitute an interlocutory judgment or order. The court further held that the trial judge should have considered the child's understanding of the concept of an oath and the consequences of lying under oath in age-appropriate language. The court emphasised the importance of assessing the child's capacity to understand the nature and consequences of an oath, rather than simply their ability to recite it. The court concluded that the trial judge's determination was based on insufficient inquiry into the child's understanding and did not adequately consider the child's capacity to comprehend the oath in a manner appropriate to their age.

The Supreme Court allowed the appeal and remitted the matter to the District Court for reconsideration of the child's competency to give evidence. The court ordered that the District Court should reassess the child's understanding of the oath and the consequences of lying under oath, using age-appropriate language, and determine whether the child was competent to give sworn evidence. The court underscored the need for a thorough and appropriate inquiry into the child's capacity to understand the oath and its consequences, ensuring that the inquiry was tailored to the child's age and cognitive abilities. The case serves as a reminder of the importance of conducting a proper assessment of a child's competency to give evidence, taking into account their developmental stage and understanding of the oath.

Orders