R v RTGS

Case [2005] NSWCCA 293

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      Regina v RTGS [2005]  NSWCCA 293

FILE NUMBER(S):
2005/622

HEARING DATE(S):               07/06/2005

JUDGMENT DATE: 12/09/2005

PARTIES:
Regina v RTGS

JUDGMENT OF:       Studdert J James J Howie J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          03/21/1219

LOWER COURT JUDICIAL OFFICER:     Knight DCJ

COUNSEL:
D. Frearson SC - Crown
R. Burgess - Appellant

SOLICITORS:
S. Kavanagh - Crown
S.E. O'Connor - Appellant

CATCHWORDS:
Criminal Law - Evidence - complainant's evidence in chief given by playing videotape - tape marked as exhibit - sent to jury on retirement - procedural irregularity - rule 4 applied - no miscarriage of justice - Verdict not unreasonable or against weight of the evidence.

LEGISLATION CITED:
Crimes Act 1900 - s 61J
Evidence (Children) Act 1997 - ss 9(1)(a), 14
Evidence Act 1995 - s 165
Criminal Procedure Rules - rule 4

DECISION:
The appeal is dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/622

STUDDERT J
JAMES J
HOWIE J

MONDAY 12 SEPTEMBER 2005

R v RTGS

Judgment

  1. STUDDERT J:  My assessment of the video tape evidence is that there was no feature of the complainant’s presentation or the way in which she gave her evidence which added weight to what the complainant said. 

  2. I have had the benefit of reading the judgment of Howie J in draft form.  I agree with the conclusions which his Honour has reached and I agree with the reasons he has expressed in coming to those conclusions.

  3. This appeal should be dismissed.

  4. JAMES J:  I agree with Howie J.

  5. HOWIE J: On 15 March 2004 a jury convicted the appellant of an offence of aggravated sexual intercourse without consent, the circumstances of aggravation alleged being that the complainant was under the authority of the appellant. This is an offence contrary to s 61J of the Crimes Act. As a consequence of his conviction Judge Knight (the Judge) sentenced the appellant to imprisonment for 3 years with a non-parole period of 18 months. The appellant appeals against his conviction but there is no application to seek leave to appeal against sentence.

  6. The Crown alleged that the appellant, who was the complainant’s step-uncle by marriage, digitally penetrated her vagina when he was baby-sitting her in his home. It was the Crown case that the conduct giving rise to the charge occurred sometime between January and May 1999, when the complainant was aged 11, and on the one occasion that the appellant had ever been asked to baby-sit her. The appellant accepted that he had minded the child on only one occasion but he maintained that this occurred in 1997. He denied ever having sexually assaulted the complainant or acting in any improper manner toward her.

  7. The police interviewed the complainant about the allegation on 1 February 2002. The complainant’s account was that, when she was in Year 6, her stepfather took her and her sister to the appellant’s home to be baby-sat. The appellant’s wife went out leaving the…

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Details
AGLC
R v RTGS [2005] NSWCCA 293
Case
[2005] NSWCCA 293
Decision Date

CaseChat Overview and Summary

In the case of R v RTGS, the appellant was convicted of certain charges, and the primary issue on appeal was the procedural irregularity in the presentation of the complainant's evidence. The complainant's evidence was taken via a videotaped interview, which was played for the jury during the trial. This method of presenting evidence was authorised under section 9(1)(a) of the Evidence (Children) Act 1997. Despite the procedural irregularity of sending the videotape to the jury room, the appeal hinged on whether this irregularity led to a miscarriage of justice or affected the verdict's reasonableness.

The court examined whether the trial judge's instructions to the jury mitigated any potential prejudice caused by the procedural error. The trial judge had provided multiple warnings to the jury about the nature of the complainant's evidence, instructing them to give it the same weight as if it had been given orally and advising them not to draw any adverse inferences from the method of presentation. Additionally, the judge emphasised the importance of carefully reviewing the videotape during their deliberations. Despite the procedural irregularity, the court found that the trial judge's instructions were sufficient to ensure that the jury understood the nature of the evidence and its weight.

Consequently, the court held that the procedural irregularity did not lead to a miscarriage of justice. The jury's verdict was not unreasonable or against the weight of the evidence, given the comprehensive warnings provided by the trial judge. The appeal was dismissed, and the conviction was upheld.

The court did not find it necessary to make any specific orders beyond affirming the conviction. The ruling underscored the importance of clear judicial instructions in mitigating the effects of procedural errors in criminal trials.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The taking of the complainant’s evidence by way of the playing of the videotaped interview was authorised by s 9(1)(a) of the Evidence (Children) Act 1997 (the Act). The provisions of the Act and other relevant statutory provisions are detailed in the joint judgment in R v NZ [2005] NSWCCA 278. It is unnecessary to set them out in this judgment in order to resolve the present ground of appeal. Apart from the fact that the videotape was sent to the jury room, there is no suggestion that the procedure adopted was not in accordance with the provisions of the Act. During the course of his introductory remarks to the jury, the Judge informed them that the complainant was going to give evidence by video-link and that part of her evidence would be given by the playing of a videotape. In accordance with s 14 of the Act the Judge then informed the jury of the following matters:there was nothing unusual in the complainant giving evidence in this way;the accused had nothing to do with the fact that the evidence of the complainant was being given in this manner and no inference could be drawn against him because of it;the jury should give the evidence the same weight as it would have been given had the complainant given evidence in the witness box;the jury should draw no inference adverse to anybody from the fact that there would be a support person and a Sheriff’s officer in the room with the complainant during the course of her evidence. Without objection from defence counsel, the videotape was sent to the jury room with the other exhibits after the jury retired to consider its verdict. During the course of the summing up the Judge repeated the warnings that he had given to the jury at the commencement of the trial about the fact that the complainant’s evidence was given by video-link and by the playing of the videotape. The judge then told the jury:“……Now you will have [the complainant’s] evidence in chief on the video tape record of interview with you in the jury room and obviously you can look at it to your heart’s (sic) content and stop it at any particular points. I want to go over in general terms what she said but I emphasise to you that you should look at the video tape record of interview very carefully indeed yourselves.” After the Judge had reviewed in some detail the contents of the interview between the complainant and the police officer, he said:“Now I think that is what I want to remind you about from what is in the video tape record of interview but I do emphasise to you as I have said several times that you really must look at the video tape, which is Exhibit A, very carefully indeed.”After reminding the jury of the cross-examination of the complainant and before moving to other evidence the judge said:“I emphasise again to you that you must examine her evidence with great care.” During the course of the summing up the judge gave the jury a Longman direction, by reason of the delay between the alleged offence, May 1999, and the date when the allegation was first put to the appellant, July 2003. That direction included the warning that it was dangerous to convict upon the evidence of the complainant alone “unless after having very carefully examined that evidence you are satisfied as to its honesty and accuracy having regard to the warning that I have just given you”.

Decision

Reasons for decision

STUDDERT J

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Ratio Decidendi

Legal Principle Established

Established by: STUDDERT J

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