R v RAG [2024] NSWDC 410

R v RAG [2024] NSWDC 410

Leave was granted because CG1 could not adequately recall the relevant further facts without assistance, paragraphs 47 and 56 of her 2019 police statement had been found by her to be accurate when made, and the s 192 factors favoured leave. Although the Court was not persuaded that the 1997 events were fresh in CG1's memory when she made her November 2019 statement, that was not fatal. The proposed procedure concerned only two paragraphs, would not add unduly to the hearing, related to important evidence for charges relied on by the Crown, and any unfairness or prejudice to the accused, including from the unavailability of SC Fenton, was slight in a judge-alone special hearing where the...

Jurisdiction
Australia
Judgment Date
22 August 2024
Procedural Posture
Criminal Proceeding; Special Hearing Involving Allegations of Historical Child Sexual Assault / Crown Application for Leave Under S 32(1) of the Evidence Act 1995 (nsw) to Permit CG1 to Revive Her Memory by Reference to Paragraphs 47 and 56 of Her 1 November 2019 Police Statement
Outcome
Crown application for leave allowed.
Legal Topics
['reviving Memory in Court' 'historical Child Sexual Assault Allegations' 'special Hearing' 'fresh in the Memory' 'section 192 Leave Factors' 'unfairness to the Accused']
['criminal Law' 'evidence'] ['reviving Memory in Court' 'historical Child Sexual Assault Allegations' 'special Hearing' 'fresh in the Memory' 'section 192 Leave Factors' 'unfairness to the Accused']

Case Brief

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Procedural Posture

Criminal Proceeding; Special Hearing Involving Allegations of Historical Child Sexual Assault / Crown Application for Leave Under S 32(1) of the Evidence Act 1995 (nsw) to Permit CG1 to Revive Her Memory by Reference to Paragraphs 47 and 56 of Her 1 November 2019 Police Statement

Legal Issues

  1. 1 ['Whether CG1 would be able to recall the relevant facts adequately without using her police statement, for the purposes of s 32(2)(a) of the Evidence Act 1995 (NSW).' "Whether paragraphs 47 and 56 of CG1's 1 November 2019 police statement were made when the events recorded in them were fresh in her memory, or were at that time found by her to be accurate, for the purposes of s 32(2)(b) of the Evidence Act 1995 (NSW)." 'Whether the s 192 factors, including length of the hearing, fairness, importance of the evidence, and the nature of the proceeding, supported granting leave.' "Whether granting leave would cause unfairness or prejudice to the accused, including because SC Fenton was not expected to be available for cross-examination about the taking of CG1's police statement."]

Ratio Decidendi

Leave was granted because CG1 could not adequately recall the relevant further facts without assistance, paragraphs 47 and 56 of her 2019 police statement had been found by her to be accurate when made, and the s 192 factors favoured leave. Although the Court was not persuaded that the 1997 events were fresh in CG1's memory when she made her November 2019 statement, that was not fatal. The proposed procedure concerned only two paragraphs, would not add unduly to the hearing, related to important evidence for charges relied on by the Crown, and any unfairness or prejudice to the accused, including from the unavailability of SC Fenton, was slight in a judge-alone special hearing where the...

Court Disposition

Crown application for leave allowed.

Orders

  • ["The Crown is granted leave to revive CG1's memory with reference to paragraphs 47 and 56 of her 1 November 2019 police statement."]