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District Court 11 September 2024

R v RAG (No.2)

[2024] NSWDC 411

Sexual offences
CRIMINAL LAW SPECIAL HEARING

Citation: R v RAG (No.2) [2024] NSWDC 411
Court: District Court of New South Wales
Date: 11 September 2024
Judge: Abadee DCJ

Background

The accused, referred to by the pseudonym RAG, faced seventeen charges of historical sexual and indecent assault offences involving two complainants: a child (CG1) and a grandchild (CG2). The charges against CG1 related to alleged conduct between 1997 and 1999, when she was between 11 and 13 years old. The charges against CG2 related to alleged conduct between 2015 and 2016, when she was between 7 and 9 years old.

On 13 August 2024, a separate finding was made that the accused was unfit to be tried through normal criminal procedures, due to mental or cognitive impairment. As a result, the matter proceeded as a "special hearing" under Division 3 of Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). In a special hearing, the proceedings are conducted as nearly as possible to a normal criminal trial, but the accused is taken to have pleaded not guilty, and the question is whether the accused committed the offences charged, rather than whether he is guilty in the full criminal sense.

Because no election was made for a jury, Abadee DCJ determined the matter as a judge-alone hearing under s 56(9) of the Act. All names were anonymised given the nature of the offences and the familial relationships between the accused, complainants, and witnesses.

  • Whether the accused committed multiple counts of aggravated sexual intercourse with a child under s 66C(2) of the Crimes Act 1900 (NSW) against CG1.
  • Whether the accused committed multiple counts of aggravated indecent assault under s 61M(1) of the Crimes Act 1900 (NSW) against CG1 (charged in the alternative to the sexual intercourse counts).
  • Whether the accused committed multiple counts of indecent assault under s 61M(2) of the Crimes Act 1900 (NSW) against CG2.
  • How the court should approach tendency evidence, delayed complaint, and the assessment of complainant credibility in a special hearing context involving historical child sexual abuse allegations.
  • What procedural consequences follow from a finding that the accused committed the offences, including the determination of a limiting term.

Decision

The defence did not contest that the complainants were within the relevant age ranges or that they were under the accused's authority at the relevant times. The primary defence was a blanket denial that the alleged acts occurred at all, with a limited qualification that some conduct involving CG2 (such as kissing or cuddling) might not rise to the level of indecency depending on the circumstances found.

Abadee DCJ conducted the hearing applying the standard directions adapted for a judge-alone special hearing, including directions on tendency evidence, consistent with the High Court's approach in The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56 and the subsequent decision in DPP v Benjamin Roder (a pseudonym) [2024] HCA 15. The court also applied s 165B of the Evidence Act 1995 (NSW) by consent, and drew on the Criminal Trials Bench Book as well as Victorian appellate authorities in formulating its directions.

The judgment sets out detailed findings on each charge group, assessing the evidence of both complainants and other witnesses, and considers the applicable elements for each category of offence. The reasons note that both counsel agreed the absence-of-consent element was superfluous in the context of offences involving underage complainants, though it was included because the relevant model directions were not confined to that context.

Following its findings on whether the accused committed the offences, the court indicated that the next step required consideration of a "limiting term," being the court's best estimate of any period of imprisonment that would have been imposed, or whether some other penalty would have been appropriate, in accordance with ss 63(2) and (3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

Orders Made

• Count 1: guilty
• Count 3: guilty
• Count 4: guilty
• Count 6: guilty
• Count 8: guilty
• Count 10: not guilty
• Count 11: not guilty
• Count 12: guilty
• Count 13: guilty
• Count 14: guilty
• Count 15: guilty
• Count 16: guilty
• Count 17: guilty

Key Takeaways

  • A special hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) is conducted as nearly as possible to a criminal trial, but determines only whether the accused committed the charged acts, not whether criminal guilt is established in the conventional sense.
  • Where no jury election is made, the question of whether the accused committed the offences is determined by a judge alone under s 56(9) of the Act.
  • Tendency evidence in special hearings is assessed consistently with the High Court's framework in Bauer and Roder, and the court confirmed it is not required to direct itself that all other rational inferences must be excluded before relying on such evidence.
  • In historical child sexual abuse proceedings, both parties agreed that the absence-of-consent element is superfluous where the complainant is underage, though it may appear in directions derived from general authorities.
  • Following a finding that the accused committed the offences, the District Court must proceed to determine a limiting term representing the best estimate of the imprisonment or other penalty that would have been imposed had the accused been convicted in ordinary proceedings.

Legislation and Cases Referenced

Legislation
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 56, 63
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 66C(2)
- Criminal Procedure Act 1986 (NSW), ss 56(5), 133(2), 161A
- Evidence Act 1995 (NSW), ss 165B, 662A

Cases
- The Queen v Bauer (a Pseudonym) (2018) 266 CLR 56
- DPP v Benjamin Roder (a pseudonym) [2024] HCA 15
- Restricted Decision [2023] NSWCCA 128
- RM v R [2024] NSWCCA 148
- Rao v R [2019] NSWCCA 290
- Maughan v R [2020] NSWCCA 51
- R v Markuleski (2001) 52 NSWLR 82
- Reed v R [2006] NSWCCA 314
- Fitzgerald v Kennard (1995) 38 NSWLR 184
- R v Winner (1995) 79 A Crim R 528
- R v O'Donoghue (2005) 151 A Crim R 597
- R v Sorlie (1925) 42 WN (NSW) 152
- Patrick v The Queen [2014] VSCA 89
- Choudhary v The Queen [2013] VSCA 325
- The Queen v MMJ [2006] VSCA 226