RRS v The Queen - [2013] NSWCCA 94

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: RRS v R [2013] NSWCCA 94
Hearing dates: 21 November 2012
Decision date: 02 May 2013
Before: Macfarlan JA at [1]
Hall J at [2];
Campbell J at [94]
Decision:
Appeal dismissed

Catchwords:
CRIMINAL LAW - offences of aggravated sexual assault and aggravated indecent assault - multiple counts in relation to each of two child complainants - evidence of separate complaints - where no suggestion of collusion between the complainants - whether evidence of one complainant inadmissible in proof of the Crown case in relation to the other - no issues of cross-admissibility raised at trial - directions of trial judge did not indicate evidence on one count available to use in another count - no direction sought at trial - trial directions adequate in the circumstances of the trial - no error established by the trial judge in not giving a direction in terms specified in R v Mitchell (1995) NSWCCA, 5 April 1995, unreported or in R v Mayberry [2000] NSWCCA 531
CRIMINAL LAW - offences of aggravated sexual assault and aggravated indecent assault - directions to the jury - evidence of complaint - delay between the mother of the complainants hearing complaint and providing police statement - where absence of corroboration - whether direction under s 165 Evidence Act 1995 required in circumstances in which the issue of the reliability of the complainants and their mother is directly in issue - no direction was required under s 165 Evidence Act 1995
Legislation Cited: Criminal Appeal Act 1912
Family Law Act 1975
Cases Cited: R v Baartman [2000] NSWCCA 298
R v Collins [2001] NSWCCA 386
R v Dennis (2010) 202 A Crim R 453; [2010] SASC 69
R v Mayberry [2000] NSWCCA 531
R v Mitchell (NSWCCA, 5 April 1995, unreported)
Category: Principal judgment
Parties: RRS (Appellant)
Regina (Respondent)
Representation: Counsel:
C Loukas SC; J Williams (Appellant)
F Veltro (Respondent)
Solicitors:
Legal Aid NSW (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/7437
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2010-06-15 00:00:00

Before:

Toner DCJ

File Number(s):

2009/7437

Judgment

MACFARLAN JA: I agree with Hall J.

HALL J: The appellant, RRS, by Notice of Appeal dated 26 July 2012, appeals against his convictions in respect of offences against two complainants (referred to in this judgment as 'A' and 'B').

The appellant was charged with three counts of aggravated sexual assault on his son 'A', a person then under the age of 10 years (Counts 1, 2 and 4) and in the alternative to Count 2, aggravated indecent assault (Count 3). The appellant was found not guilty of Counts 1 and 2 and guilty to Counts 3 and 4.

The appellant was also charged with two counts of aggravated indecent assault on his son, 'B', a person under the age of 10 years, and was found guilty of both counts.

Between February 2005 and April 2008, the appellant had full-time custody of the…

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 RRS v The Queen

Details

AGLC: RRS v The Queen [2013] NSWCCA 94
Case: [2013] NSWCCA 94
Decision Date: 02 May 2013

CaseChat Overview and Summary

In the case of RRS v The Queen, the defendant faced charges related to the aggravated sexual assault and aggravated indecent assault of two child complainants. The court had to determine whether the evidence from one complainant could be used in relation to the other, given the separate nature of the complaints and the absence of any suggestion of collusion. Additionally, the court examined whether the trial judge should have directed the jury regarding the reliability of the complainants and their mother, particularly in light of the delay between the mother hearing the complaint and providing a police statement.

The primary legal issues revolved around the admissibility of evidence from one complainant to prove the Crown's case in relation to the other and the necessity of a direction under s 165 of the Evidence Act 1995 regarding the reliability of the complainants and their mother. The court noted that no issues of cross-admissibility were raised during the trial, and the trial judge's directions did not imply that evidence from one count could be used in another. The defendant did not request any specific direction at trial, and the court found that the trial directions were adequate given the circumstances.

The court held that the trial judge did not err in failing to give a direction similar to those specified in R v Mitchell or R v Mayberry, as no cross-admissibility issues were presented. The court also determined that no direction under s 165 of the Evidence Act 1995 was required, as the reliability of the complainants and their mother was not a central issue in the trial. The evidence presented was deemed sufficient for the jury to assess the credibility of the complainants independently. The court concluded that the trial judge's directions were adequate and did not prejudice the defendant's right to a fair trial.

Orders