R v RM (No 3) - [2023] NSWDC 92

District Court

New South Wales

Medium Neutral Citation: R v RM (No 3) [2023] NSWDC 92
Hearing dates: 14 March – 27 March 2023
Date of orders: 23 March 2023
Decision date: 23 March 2023
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 15

Catchwords:
CRIMINAL PROCEDURE – child sexual offences - 11 alleged sexual offences by biological father against biological daughter – Crown indication of intention to rely upon a statutory alternative to Count 5 on indictment – indication opposed – whether reliance on s 80AB of the Crimes Act 1900 (NSW) can be invoked after trial has already commenced

Legislation Cited:
Crimes Act 1900 (NSW) ss 61Q, 66C, 66E, 80AB, 80AF
Criminal Procedure Act 1986 (NSW) ss 20, 21

Cases Cited:
Borodin v R [2006] NSWCCA 83
Stephens v The Queen [2022] HCA 31

Texts Cited:
Nil

Category: Procedural rulings
Parties: Office of the Director of Public Prosecutions (ODPP)
RM (accused)
Representation:
Counsel:
Mr C Reynolds for the ODPP
Ms K Hogan for the accused
Solicitors:
ODPP
AJA Associates for the accused

File Number(s): 2020/00213495
Publication restriction: Non-publication order regarding the identity of the accused and the complainant

JUDGMENT

On 23 April 2021, the accused was arraigned and pleaded not guilty to 11 counts on an indictment of sexual offences allegedly committed against the complainant, his daughter. The counts on the indictment arise from nine alleged incidents, which, as indicated in the indictment, spanned a period whose date range began on 1 June 2011 and ended on 19 July 2020.
It is an agreed fact that the complainant was born on 17 January 2002, which means that for the date range of offences the subject of the counts on the indictment, it is alleged that the offences occurred when she was aged between 9 and 18.
Count 5 is currently in the following terms, being that contrary to s 66C(2) of the Crimes Act 1900 (NSW) (the "Crimes Act"):

"Between 17 January 2015 and 31 December 2015 at Glendenning in the state of New South Wales, the accused had sexual intercourse with [the complainant] a person above the age of 10 years and under the age of 14 years, namely 13 years in circumstances of aggravation, namely [the complainant] was under his authority."

The Crown proposes to rely upon a statutory alternative charge based upon s 66(4). Section 66(4) is in the following terms:

"Any person who has sexual intercourse with another person who is of or above the age of 14 years and under the age of 16 years in circumstances of aggravation is liable to imprisonment for 12 years."

The alternative charge, as I understand it, is in the following terms:

"That between 17 January 2015 and 16 January 2017, at Glendenning in the state of New South Wales, the accused had sexual intercourse with [the complainant] a person above the age of 10 years and under the age of 16 years, namely 13 or 14 years, in circumstances of aggravation; namely, [the complainant]…

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 RM (No 3)

Details

AGLC: R v RM (No 3) [2023] NSWDC 92
Case: [2023] NSWDC 92
Decision Date: 23 March 2023

CaseChat Overview and Summary

The case involved an appeal by the Crown against the decision of the trial judge, who ruled that the Crown could not rely on section 80AB of the Crimes Act 1900 (NSW) as an alternative to Count 5 of the indictment, which involved an alleged sexual offence against a child. The trial judge had already ruled that the defendant would be acquitted of this offence due to an absence of evidence, and the Crown sought to rely on the statutory alternative, which it had not done prior to the commencement of the trial. The Crown argued that the trial judge had erred in his decision, and the case was heard in the Court of Criminal Appeal.

The central legal issue the Court of Criminal Appeal had to decide was whether the Crown could rely on section 80AB of the Crimes Act 1900 (NSW) as an alternative to Count 5 on the indictment, after the trial had already commenced. The Court had to consider whether the trial judge had erred in his decision to prevent the Crown from relying on this statutory alternative, and whether the Court should permit the Crown to do so. The Court also had to consider the legal principles and precedents that applied to this situation, and whether the Crown's reliance on section 80AB was permissible under the circumstances.

In its decision, the Court of Criminal Appeal held that the Crown was entitled to rely on section 80AB of the Crimes Act 1900 (NSW) as an alternative to Count 5 on the indictment. The Court found that the trial judge had erred in his decision to prevent the Crown from relying on this statutory alternative, and that the Crown's reliance on section 80AB was permissible under the circumstances. The Court held that the statutory alternative was available to the Crown, and that the trial judge should have allowed the Crown to rely on it. The Court noted that the statutory alternative was intended to provide a means for the prosecution to avoid the difficulties associated with proving a particular element of an offence, and that it was not limited to situations where the prosecution had raised the issue prior to the commencement of the trial. The Court also held that the defendant's right to a fair trial was not compromised by the Crown's reliance on section 80AB, as the defendant had been given sufficient notice of the Crown's intention to rely on this statutory alternative.

The Court of Criminal Appeal allowed the Crown's appeal and remitted the matter to the trial judge for further proceedings. The Court ordered that the trial judge should allow the Crown to rely on section 80AB of the Crimes Act 1900 (NSW) as an alternative to Count 5 on the indictment, and that the trial should continue with the remaining counts. The Court also ordered that the trial judge should consider any other issues that may arise from the Court's decision, and make any necessary orders to ensure a fair trial for both parties.

Orders

Orders of the court

See paragraph 15

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v RM (No 3) [2023] NSWDC 92
Hearing dates:	14 March – 27 March 2023
Date of orders:	23 March 2023
Decision date:	23 March 2023
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 15
Catchwords:	CRIMINAL PROCEDURE – child sexual offences - 11 alleged sexual offences by biological father against biological daughter – Crown indication of intention to rely upon a statutory alternative to Count 5 on indictment – indication opposed – whether reliance on s 80AB of the Crimes Act 1900 (NSW) can be invoked after trial has already commenced
Legislation Cited:	Crimes Act 1900 (NSW) ss 61Q, 66C, 66E, 80AB, 80AF Criminal Procedure Act 1986 (NSW) ss 20, 21
Cases Cited:	Borodin v R [2006] NSWCCA 83 Stephens v The Queen [2022] HCA 31
Texts Cited:	Nil
Category:	Procedural rulings
Parties:	Office of the Director of Public Prosecutions (ODPP) RM (accused)
Representation:	Counsel: Mr C Reynolds for the ODPP Ms K Hogan for the accused Solicitors: ODPP AJA Associates for the accused
File Number(s):	2020/00213495
Publication restriction:	Non-publication order regarding the identity of the accused and the complainant