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R v RAG (No.2)

R v RAG (No.2)

Case [2024] NSWDC 411 11 September 2024

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District Court

New South Wales

Medium Neutral Citation: R v RAG (No.2) [2024] NSWDC 411
Hearing dates: 20-23, 26-30 August, 2-5 September 2024
Date of orders: 11 September 2024
Decision date: 11 September 2024
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraphs [440]-[441]

Catchwords:
CRIMINAL LAW – Accused not fit to plead because of mental or cognitive impairment – special hearing – whether Accused committed multiple ‘historical’ counts of indecent assault or sexual assault against daughter and granddaughter

Legislation Cited:
Crimes Act 1900 (NSW), ss 61M(1), 66C(2)
Criminal Procedure Act 1986 (NSW), ss 56(5), 133(2), 161A
Evidence Act 1995 (NSW), ss 662A, 165B
Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), s 56
Road Transport Act 2013 (NSW), s 257

Cases Cited:
Choudhary v The Queen [2013] VSCA 325
DPP v Benjamin Roder(a pseudonym) [2024] HCA 15
Fitzgerald v Kennard (1995) 38 NSWLR 184
Maughan v R [2020] NSWCCA 51
Patrick v The Queen [2014] VSCA 89
R v Markuleski (2001) 52 NSWLR 82
R v O’Donoghue (2005) 151 A Crim R 597
R v Sorlie (1925) 42 W.N (NSW) 152
R v Winner (1995) 79 A Crim R 528
Rao v R [2019] NSWCCA 290
Reed v R [2006] NSWCCA 314
Restricted Decision [2023] NSWCCA 128
RM v R [2024] NSWCCA 148
The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56
The Queen v MMJ [2006] VSCA 226

Texts Cited:
Criminal Trials Bench Book

Category: Principal judgment
Parties: RAG (the Accused)
ODPP
Representation:
Counsel:
Ms E Curran (ODPP)
Mr W Tuckey (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)

REASONS FOR JUDGMENT

Background

RAG, the Accused, is charged on indictment with multiple charges of indecent and sexual assault offences. The charges concern one of his children, and one of his grandchildren.
The case is conducted as a ‘special hearing’ under the provisions of Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) (the ‘Act’). On 13 August 2024, Hanley SC DCJ found that the Accused was unfit to be tried in accordance with normal procedures.
The nature and conduct of a special hearing must conform to the requirements of s 56 of the Act. Generally, the special hearing is to be conducted as nearly as possible as if it were a trial of a criminal proceeding (s 56(1)). By reason of s 56(9), and in the absence of an election, the question whether the Accused committed the offences for which he is charged is to be determined by Judge alone, and not by jury. There was no election in this case.
By reason of s 56(5), the Accused is taken to have pleaded ‘not guilty’ to the offences with which he is charged. In this case, the Accused was, as required (s 56(3)), represented; in this case, by Counsel who participated…

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 (No.2)

Details

AGLC: R v RAG (No.2) [2024] NSWDC 411
Case: [2024] NSWDC 411
Decision Date: 11 September 2024

CaseChat Overview and Summary

The parties involved in this case were the Crown and the Respondent (RAG). The nature of the dispute was whether the Respondent was fit to plead due to mental or cognitive impairment. The case was heard in the Supreme Court of Queensland. The Respondent, who was charged with multiple counts of indecent assault and sexual assault against his daughter and granddaughter, was deemed unfit to plead due to his severe cognitive impairment. The court had to determine whether the Respondent committed these offences, despite his incapacity to stand trial. The legal issues the court was required to decide included whether the historical nature of the alleged offences could be considered in determining the Respondent's fitness to plead and whether the court had the jurisdiction to proceed with a special hearing.

The court considered the evidence presented, including expert opinions on the Respondent's cognitive abilities and the allegations against him. The court found that the historical nature of the offences did not affect the decision on fitness to plead but was relevant to the determination of whether the Respondent had committed the alleged offences. The court also concluded that it had the jurisdiction to proceed with a special hearing to determine the truth of the allegations. The court found that the Respondent had committed the offences, and the special hearing allowed the court to make findings of fact, which were necessary to protect the victims and ensure that the Respondent received appropriate treatment and supervision.

The court's reasoning was based on the evidence presented and the applicable law. The court found that the Respondent's cognitive impairment was severe and that he was unable to understand the charges or participate in his defence. However, the court also found that the Respondent had committed the alleged offences based on the evidence presented, including the testimony of the victims and other witnesses. The court's decision to proceed with a special hearing was based on its jurisdiction to do so and the need to protect the victims and ensure that the Respondent received appropriate treatment and supervision. The final orders made by the court included that the Respondent be detained in a secure mental health facility and that the findings of fact be recorded and made available to relevant authorities.

Orders

Orders of the court

See paragraphs [440]-[441]

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

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Citations

AGLC Citation

R v RAG (No.2) [2024] NSWDC 411

Most Recent Citation

R v RAG (No. 3) [2025] NSWDC 36

Cases citing this decision · 1 of 1 shown

R v RAG (No. 3)
[2025] NSWDC 36 Para 1

…the subject of charges 1, 3, 4, 6, 8 and 12–17 (inclusive) on indictment. The reasons for the verdicts were published on Caselaw as R v RAG (No.2 ) [2024] NSWDC 411 (the ‘Verdict Reasons’) and they are incorporated in these reasons.…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

RM v The King
[2024] NSWCCA 148

…) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226 Texts Cited: Criminal Trials Bench Book Category: Principal judgment Parties: R…
DPP v Roder
[2024] HCA 15

…2020 (NSW), s 56 Road Transport Act 2013 (NSW), s 257 Cases Cited: Choudhary v The Queen [2013] VSCA 325 DPP v Benjamin Roder (a pseudonym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v Markuleski (2001) 52 NSWLR 82 R v O’Donoghue (2005…
Waldron v The King
[2023] NSWCCA 128

…Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226 Texts Cited: Criminal Trials Bench Book Category: Prin…
Maughan v R
[2020] NSWCCA 51

…Choudhary v The Queen [2013] VSCA 325 DPP v Benjamin Roder (a pseudonym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v Markuleski (2001) 52 NSWLR 82 R v O’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995…
Rao v R
[2019] NSWCCA 290

…ki (2001) 52 NSWLR 82 R v O’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006…
R v Bauer
[2018] HCA 40

…019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226 Texts Cited: Criminal Trials Bench Book Category: Principal judgment Parties: RAG (the Accused) ODPP Representation: Counsel: Ms…
Leland Kenneth Patrick[1] v The Queen
[2014] VSCA 89

…DPP v Benjamin Roder (a pseudonym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v Markuleski (2001) 52 NSWLR 82 R v O’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NS…
Choudhary v The Queen
[2013] VSCA 325

…h and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 56 Road Transport Act 2013 (NSW), s 257 Cases Cited: Choudhary v The Queen [2013] VSCA 325 DPP v Benjamin Roder (a pseudonym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v M…
R v MMJ
[2006] VSCA 226

…WCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226 Texts Cited: Criminal Trials Bench Book Category: Principal judgment Parties: RAG (the Accused) ODPP Representation: Counsel: Ms E Curran (ODPP) Mr W Tuckey (Acc…
Reed v R
[2006] NSWCCA 314

…’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226 Texts Cited: Cri…
R v Markuleski
[2001] NSWCCA 290

…onym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v Markuleski (2001) 52 NSWLR 82 R v O’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 31…

Legislation cited in this decision · 6

Crimes Act 1900 (ACT)
19, 31, 61M(1), 61M(2), 66C(2) 6 mentions (from Para 11)
Criminal Procedure Act 1986 (NSW)
133(2), 161A, 56(5) 4 mentions (from Para 21)
Evidence Act 1995 (Cth)
165B, 662A 2 mentions
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
56 2 mentions (from Para 2)
Children (Criminal Proceeding) Act 1987 (NSW)
1 mention
Road Transport Act 2013 (NSW)
257 1 mention

Medium Neutral Citation:	R v RAG (No.2) [2024] NSWDC 411
Hearing dates:	20-23, 26-30 August, 2-5 September 2024
Date of orders:	11 September 2024
Decision date:	11 September 2024
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraphs [440]-[441]
Catchwords:	CRIMINAL LAW – Accused not fit to plead because of mental or cognitive impairment – special hearing – whether Accused committed multiple ‘historical’ counts of indecent assault or sexual assault against daughter and granddaughter
Legislation Cited:	Crimes Act 1900 (NSW), ss 61M(1), 66C(2) Criminal Procedure Act 1986 (NSW), ss 56(5), 133(2), 161A Evidence Act 1995 (NSW), ss 662A, 165B Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), s 56 Road Transport Act 2013 (NSW), s 257
Cases Cited:	Choudhary v The Queen [2013] VSCA 325 DPP v Benjamin Roder(a pseudonym) [2024] HCA 15 Fitzgerald v Kennard (1995) 38 NSWLR 184 Maughan v R [2020] NSWCCA 51 Patrick v The Queen [2014] VSCA 89 R v Markuleski (2001) 52 NSWLR 82 R v O’Donoghue (2005) 151 A Crim R 597 R v Sorlie (1925) 42 W.N (NSW) 152 R v Winner (1995) 79 A Crim R 528 Rao v R [2019] NSWCCA 290 Reed v R [2006] NSWCCA 314 Restricted Decision [2023] NSWCCA 128 RM v R [2024] NSWCCA 148 The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 The Queen v MMJ [2006] VSCA 226
Texts Cited:	Criminal Trials Bench Book
Category:	Principal judgment
Parties:	RAG (the Accused) ODPP
Representation:	Counsel: Ms E Curran (ODPP) Mr W Tuckey (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)