Deacon v Director of Public Prosecutions [2008] NSWDC 216

New South Wales District Court

CITATION: Deacon v Director of Public Prosecutions [2008] NSWDC 216

4 August 2008 HEARING DATE(S): 8 August 2008 18 August 2008

JUDGMENT DATE: 4 September 2008

JURISDICTION: Criminal

JUDGMENT OF: Bennett SC DCJ

DECISION: 1. The Crown is permitted to tender as fresh evidence the electronic recording of the interview between the investigating official and the complainant on 25 July 2007, the transcript of which was Exhibit 2 in the Local Court, included in Exhibit A on appeal; and 2. The Complainant is to attend and give evidence on the hearing of the appeal.

CATCHWORDS: CRIMINAL APPEAL – appeal against conviction – conviction dependent on evidence of child complainant – whether reliability and credibility of child could have been properly assessed in the absence of an audio / video recording of the child complainant's out of court representations and appropriate cross examination – EVIDENCE OF CHILDREN – Evidence (Children) Act 1997 – Criminal Procedure Amendment (Vulnerable Persons) Act 2007 – evidence of an out of court representations of child complainant – offence denied by accused – whether a transcript of child complainant's out of court representations admissible as evidence of the facts in issue – FRESH EVIDENCE – ss 18 and 19 Crimes (Appeal and Review) Act 2001 – local court proceedings not properly conducted – Crown permitted to adduce as fresh evidence audio / video recording of child complainant's out of court representations – child complainant required to give evidence

Children and Young Persons (Care and Protection) Act 1998 Crimes Act 1900 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Criminal Procedure Act 1986 Criminal Procedure Amendment (Vulnerable Persons) Act 2007 Evidence (Children) Act 1997