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RC v The The King

RC v The The King

Case [2022] NSWCCA 281 14 December 2022

Appeal

Admissibility of Evidence

Res Judicata

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RC v R [2022] NSWCCA 281
Hearing dates: 07 November 2022
Date of orders: 14 December 2022
Decision date: 14 December 2022
Before: Button J at [1]
Fagan J at [2]
Yehia J at [10]
Decision:
(1)   Grant leave to appeal in respect of Ground 1.
(2)   Uphold Ground 1.
(3)   The convictions of the applicant in the District Court on 14 December 2020 in respect of Counts 1 to 9 (inclusive), and the sentence imposed on 08 June 2021, be quashed.
(4)   A new trial be ordered in respect of Counts 1 to 9 (inclusive).
(5)   The proceedings be remitted to the District Court at Albury on 03 February 2023 for Mention to list the matter for re-trial.
(6) Refuse leave to appeal in respect of Ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).

Catchwords:
APPEALS — Appeal against conviction — Sexual assault and indecent assault of children — Reluctant witness — Error in admitting into evidence complainant’s police statement — Whether silence is sufficient to establish a denial or a failure to agree or admit to the substance of the evidence under s 106(1)(a)(ii) of the Evidence Act — Whether witness is “unavailable” — Whether “all reasonable steps” taken by the Crown Prosecutor to compel the witness to give evidence — Appeal allowed — Conviction quashed — Re-trial ordered

Legislation Cited:
Crimes Act 1900 (NSW) ss 61M, 66A
Criminal Appeal Act 1912 (NSW) s 5
Evidence Act1995 (NSW) cl 4, ss 38, 59, 60, 65, 101A, 106
Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4

Cases Cited:
Adam v R (2001) 183 ALR 625, [2001] HCA 57
Col v R [2013] NSWCCA 302
IW v R [2019] NSWCCA 311
Lee v The Queen (1998) 195 CLR 594, [1995] HCA 60
Mukherjee v Work Cover Authority (NSW) [2008] NSWIRComm 53
Papakosmas v The Queen (1999) 196 CLR 297, [1999] HCA 37
R v Omar [2022] NSWSC 371
R v Rose [2002] NSWCCA 455
R v Ryan [2020] NSWSC 1394
R v Suteski [2002] NSWCCA 509
R v Tarantino [2019] NSWSC 939
Sio v The Queen (2016) 259 CLR 47, [2016] HCA 32

Texts Cited:
Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985)
Australian Law Reform Commission, Evidence (Report No 38, June 1987)

Category: Principal judgment
Parties: RC (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Hall SC (Applicant)
M Kumar (Respondent)
Solicitors:
Legal Aid Commission (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2018/00138989; 2018/00272367
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

08 June 2021

Before:

Grant DCJ

File Number(s):

2018/00138989; 2018/00272367

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial at Albury District Court before his Honour Judge Grant and a jury of 12, the applicant was convicted of nine counts…

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 RC v The The King

Details

AGLC: RC v The The King [2022] NSWCCA 281
Case: [2022] NSWCCA 281
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case of RC v The King involved an appeal against the conviction of RC, who was found guilty of sexually assaulting and indecently assaulting two children. The case was heard in the Supreme Court of Victoria. The primary legal issue before the court was whether there was an error in admitting into evidence a police statement made by one of the complainants. The appellant argued that the trial judge should not have accepted the statement as evidence because the witness, who was reluctant to testify, did not expressly deny or fail to agree with the content of the statement, as required by section 106(1)(a)(ii) of the Evidence Act. The court also considered whether "all reasonable steps" had been taken by the Crown Prosecutor to compel the witness to give evidence, and whether the witness could be considered "unavailable."

The court held that there was an error in the admission of the police statement, as the witness's silence did not constitute a denial or failure to agree with the content of the statement. The court found that the witness was reluctant but not necessarily "unavailable" under the Evidence Act. Furthermore, the court concluded that the Crown Prosecutor had not taken "all reasonable steps" to compel the witness to give evidence. As a result, the appeal was allowed, the conviction was quashed, and a re-trial was ordered. The court determined that the error in the admission of the police statement was significant enough to potentially affect the outcome of the trial, and therefore, a re-trial was necessary to ensure a fair trial for the appellant.

Orders