RJ v The Queen

Case [2010] NSWCCA 263


NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
RJ v R [2010] NSWCCA 263

FILE NUMBER(S):
2009/7443

HEARING DATE(S):
22 September 2010

JUDGMENT DATE:
15 November 2010

PARTIES:
RJ (Appellant)
Regina (Crown)

JUDGMENT OF:
Campbell JA Latham J Price J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
2009/7443

LOWER COURT JUDICIAL OFFICER:
Boulton ADCJ

LOWER COURT DATE OF DECISION:
18 December 2009

COUNSEL:
G D Wendler (Appellant)
P G Ingram (Crown)

SOLICITORS:
Van Houten Law (Appellant)
Solicitor for Public Prosecutions (Crown)

CATCHWORDS:
CRIMINAL LAW – Sexual assault – evidence – CRIMINAL LAW – Evidence – competence of person to take oath – unsworn evidence by child – admissibility of matter referred to in unsworn evidence – fundamental defect through manner of receiving unsworn evidence – appeal allowed, matter remitted to District Court for new trial – CRIMINAL LAW – Appeal and new trial – objections not raised in court below – whether leave required to appeal against decision to receive unsworn evidence – reason why matter not raised at trial is important in deciding whether to grant leave under Rule 4, Criminal Appeal Rules – CRIMINAL LAW – Evidence – accused evidence of good character – whether Crown submission prejudicial to accused – overall context of prosecutor’s speech qualified effect of relevant passage – accurate to say that good character evidence is not determinative of the issue of guilt or innocence – no miscarriage of justice – CRIMINAL LAW – Evidence – evidence of good character of accused– whether judge’s directions to jury inadequate or prejudicial to accused – held that it is open to judge to direct jury that they are entitled to take evidence of good character into account – no miscarriage of justice

LEGISLATION CITED:
Criminal Appeal Rules
Criminal Procedure Act 1986
Evidence Act 1995
Evidence Amendment Act 2007

CATEGORY:
Principal judgment

CASES CITED:
Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467
Pease v R [2009] NSWCCA 136
R v Brooks (1998) 44 NSWLR 121
R v Fitzsimmons (NSWCCA, 15 June 1998, unreported)
R v JTB [2003] NSWCCA 295
R v RAG [2006] NSWCCA 343
R v Trimboli (1979) 1 A Crim R 73
R v Wedd [2000] WASCA 273
RA v R [2007] NSWCCA 251
Regina v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
Tripodina v R; Morabito v R (1988) 35 A Crim R 183

TEXTS CITED:

DECISION:
(1) Appeal allowed.
(2) Set aside the conviction in the court below.
(3) Remit the matter to the District Court for a new trial.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2009/7443

CAMPBELL JA
LATHAM J
PRICE J

15 NOVEMBER 2010

RJ v The Queen

Judgment

  1. CAMPBELL JA:  The Appellant was convicted at a trial held in the District Court in August 2009 of four offences involving a sexual assault against a child.  The one child was involved in all of the charges.  That child was seven years of age at the time of the assaults.  She…

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AGLC
RJ v The Queen [2010] NSWCCA 263
Case
[2010] NSWCCA 263
Decision Date

CaseChat Overview and Summary

RJ was charged with sexually assaulting a child. The matter was heard in the Court of Appeal of the Supreme Court of New South Wales. The court had to decide whether the trial was conducted lawfully and if the appeal against the conviction should be upheld. The key issues were the manner in which the child complainant's unsworn evidence was received, the effect of certain comments made by the Crown prosecutor, and whether the trial judge's directions to the jury regarding the accused's good character evidence were prejudicial.

The Court of Appeal held that the manner in which the child's unsworn evidence was received constituted a fundamental defect. The judge failed to ensure that the child understood the importance of telling the truth and the consequences of not doing so. This defect necessitated a new trial. The court also noted that while the Crown prosecutor's comments about the accused's good character were not prejudicial in the overall context of the trial, the manner in which the unsworn evidence was handled was significant. The judge's directions to the jury that they could consider the accused's good character were not improper, as it is permissible for the judge to inform the jury that they may take such evidence into account.

The Court of Appeal allowed the appeal, set aside the conviction, and remitted the matter to the District Court for a new trial. The court emphasised the importance of procedural correctness in ensuring the integrity of the trial process, particularly in cases involving vulnerable witnesses.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The prosecutor then handed the judge a copy of a service containing the Evidence Act, and informed the judge of the Complainant’s present age, and her age at the time of her recorded police interview. The court then took a short adjournment. Immediately after the court resumed, and before the jury returned, the transcript shows the following:“HIS HONOUR: If we can bring the little girl up on the screen--CROWN PROSECUTOR: Yes--HIS HONOUR: --I might tell her those few things that are mentioned there in s 13.CROWN PROSECUTOR: Thank your Honour. And your Honour just as your Honour’s court officer’s going out can I prevail upon him to take a plan that will be shown to the witness during the course of her evidence, just to save the running back and forth between the room[s].TORPEY: Your Honour there was an issue that I wished to ventilate just before --HIS HONOUR: Yes of course, yes.TORPEY: --before the young person gives, the child does gives evidence. I don’t know whether it’s more convenient to do it now before she’s brought up on the screen or wait till after your Honour’s conducted the enquiry.HIS HONOUR: I’m only going to just--TORPEY: Okay.HIS HONOUR: I take the view that because of her age, it’s not appropriate for her to give sworn evidence but subject to the things that are in ss (5) that she would be competent to give unsworn evidence if I informed her of those--TORPEY: So your Honour proposes to ask questions in accordance with that subsection.HIS HONOUR: Well I’ve got to tell her that it’s important to tell the truth.TORPEY: Yes.HIS HONOUR: And so on.” The prosecutor mentioned to the judge the statutory requirement under section 291 Criminal Procedure Act 1986 for the Complainant’s evidence to be taken in camera, and continued:“Now I know your Honour’s not specifically taking evidence from her at the moment, that’s s 291 ss(1) of the Criminal Procedure Act, I know your Honour’s not technically taking evidence but the court will need to be closed, I don’t know if your Honour would be minded to do it now before she comes up.” The judge then closed the court to members of the public, and the closed circuit television link between the courtroom and the room where the Complainant was located was activated. There was then a discussion between the judge and the Complainant. The judge referred to the Complainant by her first name, but in the transcript reproduced I shall replace that name by “LMN”:“Q. [LMN] can you see me now?A. Yes.Q.That’s good. [LMN], you’re going to be asked a number of questions. You realise that?A. Yes.Q.Now [LMN], do you understand that it’s important when you’re asked these questions that you tell the truth?A. Yes.Q.Yes good. Now [LMN] if you’re asked a question and you don’t know the answer to the question or if you can’t remember the answer, don’t be afraid to say that you don’t know or that you can’t remember. Do you understand that?A. Yes.Q.Yes so if you don’t know the answer to a question simply say “I don’t know.” Or if you can’t remember simply say “I can’t remember.” Don’t then try to say something if you really don’t know or don’t remember. Now the other thing is [LMN], you may have things suggested to you that you agree with. And if you do agree with them you should say “Yes I agree.” You understand?A. Yes.Q.But if you don’t agree with them feel free to say “No I don’t agree with that.” you understand?A. Yes.Q.[LMN], we’ll be back to you in a few minutes time when the prosecutor will begin to ask you some questions.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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