RC v R [2022] NSWCCA 281

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: RC v R [2022] NSWCCA 281 Hearing dates: 07 November 2022 Date of orders: 14 December 2022 Decision date: 14 December 2022 Before: Button J at [1] Fagan J at [2] Yehia J at [10] Decision: (1) Grant leave to appeal in respect of Ground 1. (2) Uphold Ground 1. (3) The convictions of the applicant in the District Court on 14 December 2020 in respect of Counts 1 to 9 (inclusive), and the sentence imposed on 08 June 2021, be quashed. (4) A new trial be ordered in respect of Counts 1 to 9 (inclusive). (5) The proceedings be remitted to the District Court at Albury on 03 February 2023 for Mention to list the matter for re-trial. (6) Refuse leave to appeal in respect of Ground 2 pursuant to r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW). Catchwords: APPEALS — Appeal against conviction — Sexual assault and indecent assault of children — Reluctant witness — Error in admitting into evidence complainant's police statement — Whether silence is sufficient to establish a denial or a failure to agree or admit to the substance of the evidence under s 106(1)(a)(ii) of the Evidence Act — Whether witness is "unavailable" — Whether "all reasonable steps" taken by the Crown Prosecutor to compel the witness to give evidence — Appeal allowed — Conviction quashed — Re-trial ordered Legislation Cited: Crimes Act 1900 (NSW) ss 61M, 66A Criminal Appeal Act 1912 (NSW) s 5 Evidence Act 1995 (NSW) cl 4, ss 38, 59, 60, 65, 101A, 106 Supreme Court (Criminal Appeal) Rules 2021 (NSW) r 4 Cases Cited: Adam v R (2001) 183 ALR 625, [2001] HCA 57 Col v R [2013] NSWCCA 302 IW v R [2019] NSWCCA 311 Lee v The Queen (1998) 195 CLR 594, [1995] HCA 60 Mukherjee v Work Cover Authority (NSW) [2008] NSWIRComm 53 Papakosmas v The Queen (1999) 196 CLR 297, [1999] HCA 37 R v Omar [2022] NSWSC 371 R v Rose [2002] NSWCCA 455 R v Ryan [2020] NSWSC 1394 R v Suteski [2002] NSWCCA 509 R v Tarantino [2019] NSWSC 939 Sio v The Queen (2016) 259 CLR 47, [2016] HCA 32 Texts Cited: Australian Law Reform Commission, Evidence (Interim) (Report No 26, August 1985) Australian Law Reform Commission, Evidence (Report No 38, June 1987) Category: Principal judgment Parties: RC (Applicant) Rex (Respondent) Representation: Counsel: S Hall SC (Applicant) M Kumar (Respondent)