RA v R - [2007] NSWCCA 251

Reported Decision: 175 A Crim R 221

New South Wales

Court of Criminal Appeal

CITATION: RA v R NON PUBLICATION ORDER [2007] NSWCCA 251

HEARING DATE(S): 6 August 2007

JUDGMENT DATE:
21 August 2007

JUDGMENT OF: McClellan CJ at CL at 1; Howie J at 15; Harrison J at 16

DECISION: 1. Grant leave to appeal; 2. Dismiss the appeal.

CATCHWORDS: CRIMINAL LAW – Evidence Act 1995 (NSW) s 13 – Evidence (Children) Act 1997 (NSW) s 9 – record of an interview – sound recording – admissibility – competent to give evidence at the trial – competence at the time a person is called to give evidence – presumed to be competent – neither the defence nor prosecution carries an onus of proving lack of competence – whether the Court is satisfied – the Court may inform itself as it thinks fit– balance of probabilities

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

CASES CITED: R v Ellis (2003) 58 NSWLR 700
R v T (1998) 102 A Crim R 222
R v Yacoob (1981) 92 Cr App R 313

PARTIES: RA (Appl)
The Crown

FILE NUMBER(S): CCA 2007/3311

COUNSEL: C T Loukas/I H Nash (Appl)
D C Frearson SC (Crown)

SOLICITORS: Aboriginal Legal Service (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/71/0119

LOWER COURT JUDICIAL OFFICER: Freeman DCJ

LOWER COURT DATE OF DECISION: 23 May 2007

2007/3311

McCLELLAN CJ at CL
HOWIE J
HARRISON J
TUESDAY 21 AUGUST 2007

RA v R

Judgment

Non publication order. The Court has made the following orders:
1. that there be no publication of the name of the appellant or of any matter that would identify him;
2. that the appellant be referred to in any record of these proceedings as “RA”;
3. that the name of the complainant, and any material apt to identify the complainant, not be published.

1 McCLELLAN CJ at CL: The appellant has been charged with one count of sexual intercourse with a child under the age of 10 years. A question has arisen at his trial as to whether the record of an interview with the complainant is admissible in evidence. The offence allegedly occurred in August 2003 when the complainant was aged five years and three months. She is now aged nine years.

2 The complainant was interviewed at the time of the alleged offence and a sound recording was made. The Crown now seeks to tender the recording as the complainant’s evidence in chief pursuant to s 9(1) of the Evidence (Children) Act 1997. Before the trial judge defence counsel objected to the tender. It was submitted that before the interview could be admitted the trial judge must be satisfied, beyond reasonable doubt that, at the time she gave the interview, the complainant was competent to give evidence. This submission was maintained in this Court.

3 Before the trial judge and in this Court the Crown submitted that the competence of…

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 RA v R

Details

AGLC: RA v R [2007] NSWCCA 251
Case: [2007] NSWCCA 251
Decision Date: 21 August 2007

CaseChat Overview and Summary

The case of RA v R involved the appellant, RA, who was convicted of sexual offences against his step-daughter, the complainant, who was a child at the time of the offences and during the recording of her interview. The trial judge admitted a sound recording of the interview as evidence under the Evidence (Children) Act 1997 (NSW), despite the defence's objection that the complainant was not competent to give evidence at the time of the recording. The case was heard by the Supreme Court of New South Wales, Court of Criminal Appeal.

The legal issues before the court included whether the sound recording of the complainant's interview was admissible under the Evidence (Children) Act 1997 (NSW) and whether the complainant was competent to give evidence at the time of the recording. The court had to determine whether the trial judge's decision to admit the recording was correct and whether the complainant's competence at the time of the recording was relevant to its admissibility.

The court held that the complainant was presumed to be competent to give evidence at the time she was called to give evidence, and neither the defence nor prosecution carried an onus of proving lack of competence. The court noted that the trial judge had the discretion to inform themselves as they thought fit and to decide whether the complainant was competent to give evidence at the time of the recording. The court found that the trial judge had correctly exercised this discretion and that the recording was admissible under the Evidence (Children) Act 1997 (NSW). The court also noted that the question of the complainant's competence at the time of the recording was not relevant to the admissibility of the recording, as the Act permitted the admission of recordings of interviews with children who were not competent to give evidence at the time of the interview.

The court dismissed the appeal and affirmed the conviction of RA. The court noted that the admission of the recording did not affect the reliability or credibility of the evidence and that the jury was properly directed to consider the evidence in light of the complainant's age and the circumstances of the recording.

Orders