Citation: Regina v RTGS [2005] NSWCCA 293
Court: NSW Court of Criminal Appeal
Date: 12 September 2005
Judge(s): Studdert J, James J, Howie J
Background
The appellant was convicted by a jury in the District Court of aggravated sexual intercourse without consent under s 61J of the Crimes Act 1900. The circumstances of aggravation were that the complainant, then aged approximately 11, was under the appellant's authority as his step-niece by marriage. The alleged offence occurred on the only occasion the appellant had baby-sat the complainant at his home.
The Crown's case was that the incident took place in 1999, with the complainant's stepfather and the appellant's estranged wife both placing the baby-sitting around May of that year. The appellant maintained the baby-sitting had occurred in October 1997 and denied any improper conduct.
Following conviction, the appellant was sentenced to three years' imprisonment with a non-parole period of 18 months. He appealed against conviction only.
Legal Issues
- Whether a procedural irregularity, namely the complainant's video-recorded evidence in chief being sent to the jury room during deliberations, resulted in a miscarriage of justice.
- Whether the verdict was unreasonable or against the weight of the evidence, particularly given disputed evidence about when the baby-sitting incident occurred.
Decision
The court considered the first ground: the complainant's evidence in chief had been given by playing a videotape recorded under the Evidence (Children) Act 1997, the tape was marked as an exhibit, and it was sent to the jury upon retirement. This was a procedural irregularity, as the tape should not ordinarily have been sent to the jury room. However, the court applied Rule 4 of the Criminal Procedure Rules and found that the irregularity had not resulted in a miscarriage of justice.
Studdert J observed that nothing in the complainant's presentation on the tape, or in the manner she gave her evidence, lent additional weight to her account. The court was satisfied that the jury was not improperly assisted or influenced by having access to the tape during deliberations in a way that prejudiced the appellant.
On the second ground, the court examined whether the verdict was unreasonable given the contest over timing. The central question was whether the baby-sitting occurred in 1997 or 1999, and the court found this was properly resolved by the jury in favour of the Crown. The appellant's estranged wife was insistent that the baby-sitting occurred while she was pregnant with her daughter, born 22 May 1999, and the court considered she was unlikely to be mistaken on that point. Her evidence, along with that of the complainant's stepfather, supported the Crown's timeline.
Howie J, with whom Studdert J and James J agreed, concluded that the jury's finding on the timing issue was well open on the evidence. That finding was significant because it substantially undermined the appellant's evidence while supporting the complainant's reliability on the central allegation. Neither ground of appeal was made out, and the appeal was dismissed.
Orders Made
- The appeal against conviction is dismissed.
Key Takeaways
- A procedural irregularity involving a videotaped evidence-in-chief recording being sent to the jury room does not automatically produce a miscarriage of justice; the court applied Rule 4 of the Criminal Procedure Rules and assessed whether actual prejudice resulted.
- Under the Evidence (Children) Act 1997, a child complainant's video-recorded evidence in chief is not ordinarily to be sent with the jury on retirement, and doing so constitutes a procedural irregularity.
- No miscarriage of justice was established where nothing in the complainant's presentation on the tape added weight to her account beyond what the jury had already seen and heard.
- Sufficient evidence existed to support the jury's finding on a contested factual issue, even where documentary evidence created some inconsistency, provided other witness evidence was credible and capable of resolving the conflict.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that an unreasonable verdict argument will not succeed where it was plainly open to the jury to prefer Crown witnesses on a key factual dispute.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61J
- Evidence (Children) Act 1997 (NSW), ss 9(1)(a), 14
- Evidence Act 1995 (NSW), s 165
- Criminal Procedure Rules, Rule 4
Cases:
- R v NZ [2005] NSWCCA 278
- R v Stewart (2001) 52 NSWLR 301
- R v Fowler (2003) 151 A Crim R 166
- R v El-Azzi [2004] NSWCCA 455
- R v BAH (2002) 5 VR 517
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- R v Williams (1999) 104 A Crim R 260