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District Court 26 February 2025

Hagerty v R

[2025] NSWDC 67

Sexual offences
CRIME APPEALS APPEAL AGAINST CONVICTION CHILD SEX OFFENCE LEAVE TO APPEAL MODERATE INTELLECTUAL DISABILITY

Citation: Hagerty v R [2025] NSWDC 67
Court: District Court of New South Wales
Date: 26 February 2025
Judge(s): J Smith SC DCJ

Background

The appellant was charged with one count of intentionally sexually touching his nephew, who was aged between three and five at the time of the alleged offence. The matter was heard in the Local Court at Wollongong in April 2024, and the Magistrate found the appellant guilty in May 2024. The appellant was sentenced in July 2024.

The appellant lodged an application for leave to appeal in September 2024, more than 28 days after the Local Court's orders, making leave necessary under the Crimes (Appeal and Review) Act 2001. The appellant has a moderate intellectual disability, a specific learning disorder, and generalised anxiety, and was supported by four NDIS-funded support persons during the Local Court hearing.

The complainant was six years old at the time of the hearing and gave unsworn evidence. The Magistrate had treated the child as not competent to give sworn evidence, meaning the procedural requirements for receiving unsworn evidence under section 13(5) of the Evidence Act 1995 applied.

  • Whether leave to appeal should be granted out of time, in circumstances where the appellant has a moderate intellectual disability
  • Whether the Magistrate failed to comply with the mandatory requirements of section 13(5) of the Evidence Act 1995 before receiving the complainant's unsworn evidence
  • Whether, if the complainant's evidence was admissible, the Magistrate erred in accepting its reliability given internal inconsistencies

Decision

On leave to appeal: The District Court granted leave, finding it was in the interests of justice to do so. The appellant's intellectual disability was relevant to the delay, and on the face of the transcript the appeal had strong prospects of success.

On section 13(5) compliance: Section 13(5) of the Evidence Act 1995 sets out three matters the court must communicate to a child witness before that child may give unsworn evidence: that it is important to tell the truth (paragraph (a)); that the child may say if they do not know or cannot remember an answer (paragraph (b)); and that the child should only agree with suggestions they believe to be true and should feel no pressure to agree with statements they believe are untrue (paragraph (c)). The Magistrate addressed paragraphs (a) and (b) in exchanges with the complainant, but said nothing that reflected the requirement in paragraph (c) at any point in the hearing.

The Crown argued that strict verbatim compliance was not required, and sought to rely on the witness intermediary's report, visual cue cards used during the hearing, and general pre-trial preparation. The District Court rejected those arguments. Citing SH v R and R v Brooks, the court confirmed that the obligation falls exclusively on the court itself. Instructions given by another person, including a witness intermediary, cannot satisfy the statutory requirement, because the policy behind the provision is that the authority of the court must be brought to bear on the witness directly.

On reliability: Although the second ground was strictly unnecessary to resolve given the outcome on the first ground, the court found it also succeeded. The complainant gave inconsistent accounts across different occasions, including whether the appellant had touched him with his penis or merely been "near" him. The complainant also made statements inconsistent with the grandmother's evidence and withdrew at least one allegation during the proceedings. The court found these inconsistencies were sufficient to raise a reasonable doubt, and that the Magistrate erred in accepting the complainant's reliability.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Conviction set aside

Key Takeaways

  • All three requirements of section 13(5) of the Evidence Act 1995 are mandatory. Failure to satisfy even one of them means a child witness is not competent to give unsworn evidence, that evidence is inadmissible, and any resulting conviction cannot stand, even without a contemporaneous objection or demonstrable miscarriage of justice.
  • The obligation under section 13(5) rests solely with the court. Statements made by a witness intermediary, references to a pre-trial report, or the use of visual cue cards cannot substitute for the court directly conveying the required information to the witness.
  • The District Court observed, without finally deciding the point, that this type of non-compliance may constitute jurisdictional error susceptible to review in the Supreme Court, drawing on Kirk v Industrial Relations Commission of NSW [2010] HCA 1.
  • Inconsistencies between a child complainant's accounts given on the same day are capable of raising a reasonable doubt, particularly where one version supports the charge and another does not.
  • An appellant's intellectual disability is a relevant consideration when assessing reasons for delay in filing an out-of-time appeal under the Crimes (Appeal and Review) Act 2001.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 13, 16(2)
- Crimes Act 1900 (NSW), ss 66DA(a), 61HB
- Evidence Act 1995 (NSW), s 13(5)(a)-(c)

Cases
- Kirk v Industrial Relations Commission of NSW [2010] HCA 1; 239 CLR 531
- MK v R [2014] NSWCCA 274
- R v Brooks [1998] 44 NSWLR 121
- SH v R [2012] NSWCCA 79